The WildLaw Letter

A Bi-monthly Report for Members & Friends

July 1998

In our last newsletter, we reported that WildLaw was adding two new attorneys. Due to circumstances beyond the control of ourselves or our funders, the pledges for the funds for one of those positions have been withdrawn. Still, we will be adding Leigh Haynie on August 1 to work on National Forest and other public lands defense cases.

Despite this momentary setback, WildLaw is still growing in success. The addition of Leigh will help alleviate the problem of having to turn down as many as ten cases a week. From throughout the southeast, calls from environmental and community organizations come in every day seeking legal assistance. We are currently challenging more than 30,000 acres of National Forest timber sales from Mississippi to Virginia. Despite our handling more than 50 cases currently, we still take one to two new cases each week, but we have to turn away so many more.

The lack of available legal representation in the South for environmental causes is becoming a bigger problem as the pressures of development and wildlands exploitation become more and more intense. As the reports in this newsletter show, the opponents of environmental protection are getting backed into a corner and fighting harder than ever to exploit our public lands.

With potential permanent protection for our National Forests within sight in the next few years, the enemy is increasing their efforts to get what they can while the getting is good. Now is the time when we all must step up our efforts as well and fight for these last wild places and make sure that they remain wild.

On behalf of Appalachian Voices, WildLaw is filing suit over the Independence Day Storm Salvage timber sale on Snowbird Creek in the Nantahala National Forest in North Carolina. Involving perhaps 10-15 acres of damaged timber, the sale plans to clearcut and thin 178 acres, most of which is perfectly healthy, undamaged trees on very steep slopes.

As expected, Regional Forester Elizabeth Estill ruled against us on our administrative appeal, dismissing all our claims with cursory conclusions that the timber harvest is okay. The case challenges the timber sale on a dozen grounds, including the failure to use site-specific information, the failure to consider cumulative impacts, the failure to use available data on the rare Junaluska Salamander, the failure to consider any alternatives other than the proposal itself, and the false pretense of minor timber damage being used for a large green tree cut.

On behalf of Wild Alabama, WildLaw filed an administrative appeal this month under the Freedom of Information Act (FOIA) to get documents from the new Regional Forester Elizabeth Estill regarding mandates she has placed on the Southern Region's National Forests regarding their "Green Timber Sale Program attainment." In a memo from last January, Ms. Estill lamented that the Region and many of its forests had "fallen short of expectation" in getting the cut out. Without ever mentioning "goals" for recreation, wildlife, endangered species or any other resource or use the National Forests are there for, Ms. Estill stated that shortfalls in the timber sale "pipeline" were "not acceptable." She then seemed to threaten the jobs of supervisors who did not get the cut out.

WildLaw sent Ms. Estill a FOIA request for all documents related to this memo, but she has refused to produce all the documents we requested.

In response to our disclosure of these memos, Ms. Estill interrupted her family vacation to fly to Bama and meet with Lamar Marshall of Wild Alabama and Ray Vaughan. On July 10, we took her on a personal tour of the Bankhead.

Ms. Estill explained that her memo did not mean what it appeared to say and that it was well understood in the Forest Service that failure to meet timber targets was not considered "bad" and that having to give up money sent to a forest was not a "bad" sign for a supervisor. She then went on, however, to admit that timber harvesting is used by the Forest Service at all levels to provide funding for wildlife, archeological, recreation, watershed and other resources, as Congress does not adequately fund those things. While trying to explain away the negative tones of her memo, she confessed (apparently unknowingly) that all areas of Forest Service management must prostitute themselves to timber in order to get the funding they need to do what they want.

She also indicated she would "look into" including more areas in the roadless area inventory and stopping conversion of hardwoods to pine plantations, but we told her that our judgment and future actions would be based upon her actions, not her words. As the previous story shows, her actions have not been good so far.

WildLaw is representing USA Farms, Inc., a non-profit group set up to demonstrate urban sustainable agriculture, and Georgette Norman, the Executive Director of the Alabama African-American Arts Alliance, in their fight to save their private property. The City of Montgomery, Alabama is prosecuting Georgette because she and USA Farms have an organic garden in her yard on Rosa Parks Avenue. The City's housing inspector has declared all their vegetables and herbs "weeds" and ordered them destroyed. Georgette and Nomad Steward, the head of USA Farms, are long-time supporters of the concept and reality of permaculture and the protection of rare, vanishing and endangered vegetable types. Included in their carefully-designed and well-maintained organic garden are Choctaw Squash and a wide-variety of other endangered heirloom plant types. Their stewardship of the yard and the living stewardship demonstration they give their neighbors have drastically reduced the amount of waste they send to the City landfill, reduced herbicides and pesticides in the neighborhood, beautified a decaying and crime-filled area, and taught local kids how to work the soil and stay chemical (and drug) free.

WildLaw is proud to represent (free of charge, as always) these pioneering land stewards in their fight against "Big Brother" government bent on making people conform to a preset "lawn culture" norm and forcing people to be dependent on industrial chemicals and factory-farm food.

WildLaw is helping form and is providing initial office space for Old Alabama Rails, a non-profit group dedicated to restoring the old rail yards of the Western Railway of Alabama in Montgomery. The vision of Rev. Andrew Waldo, this effort is working to establish a railroad museum and urban beautification area in a currently run-down part of downtown. The 38-acre site can be acquired for around $250,000, and once it is bought, a number of people are willing to donate two steam locomotives and rolling stock to give the museum running trains with excursions planned for Selma and Tuskegee. It will then take millions of dollars to rebuild the old yard buildings (circa 1901) into a museum, shops and a restaurant, and much of the property will be used as a park. The museum will highlight the days of when railroad transportation built the country with common mass transportation. Montgomery lacks much green space downtown, and few people know that Montgomery played a major role in history, being the first city in the world to have trolleys.

WildLaw is helping coordinate the start of this new group and project and is reviewing the area for possible old contamination. Once the museum and park meet the ten-year goal set for it, Montgomery will have an urban renewal showcase as good as any in the country.

On behalf of Wild South, WildLaw has appealed the Compartment 117 timber sale in the Holly Springs National Forest in northeast Mississippi. Working in conjunction with us, Citizens for Holly Springs National Forest, Heartwood and the Memphis Audubon Society have all also filed separate appeals of this sale.

The local citizens challenging this sale gathered site-specific data about the sale area, because the Forest Service failed to do so as the law requires. That data showed these forests to be almost entirely made up of hardwoods. But the Forest Service justified their plans to clearcut and convert the hardwoods to pine plantations by claiming that the citizens failed to count pine trees that were not there. The Forest Service is arguing that trees that do not exist should be used to declare these areas as "pine" forests, so as to defend the clearcutting of native hardwoods.

As part of the regional group Appalachian Voices' campaign to protect National Forests throughout the east, WildLaw and The Armuchee Alliance (both members of Appalachian Voices) have settled a timber sale appeal with the Forest Service. In the Maddox Gap Timber Sale on the Armuchee District of the Chattahoochee National Forest in northwest Georgia, the Forest Service had planned to run a logging road next to East Chickamauga Creek (literally next to it) to access a large thinning operation, with massive sedimentation of the creek as a result. In response to our appeal, the Forest Service met with members of The Armuchee Alliance and agreed to: (1) not use that planned logging road next to the creek, (2) reduce the size and area of the cut in that unit next to the creek, (3) give a 30-foot buffer along each side of the Chickamauga Creek Trail (they had planned to log the trail), and (4) not log that unit during the Spring and Summer, the prime recreational and migratory bird nesting seasons.

As far as we know, this is the first time in the Southern Region that the Forest Service has agreed not to log during nesting and peak recreational usage seasons, as the Forest Service has long defended their "right" to cut any tree at any time regardless of the consequences to wildlife or recreation. Now we have a precedent to argue that they should not log during Spring in Summer in other areas where the timing of the logging will adversely impact these other uses.

The Bankhead National Forest is proposing a 276-acre timber sale along Brushy Creek, a critical habitat for a number of endangered aquatic mussels and the Flattened Musk Turtle. The "Moreland Project" proposal includes 61 acres of clearcuts right next to bluffs over the creek in order to convert the naturally regenerating hardwood forests there to pine plantations. After the cutting, these areas will be burned, poisoned and run over with a roller-drum chopper to prepare them for conversion into pine plantations. As usual for the Bankhead, the Environmental Assessment (EA) lacks site-specific data on possible impacts. For example, the archeological study of the area admits that it never covered the sites to be clearcut, just the areas planned for thinning.

On the endangered mussels and turtle, the EA and its biological evaluation give short shrift to the effects on these species, giving them all a total of three paragraphs of consideration.

The comment period will extend to July 31, 1998. Please write District Ranger James Ramey, Bankhead National Forest, P.O. Box 278, Double Springs, Alabama 35553, and tell him that you oppose converting the natural hardwood forests of the Bankhead into more subsidized pine plantations.

WildLaw's lawsuit on behalf of the Shenandoah Ecosystems Defense Group, Heartwood, Preserve Appalachian Wilderness, and The Wilderness Society over three timber sales in the Jefferson National Forest in Virginia has been transferred from Atlanta to the Western District Court of Virginia. The judge in Atlanta did grant us a temporary restraining order temporarily preventing any logging next to the Thunder Ridge Wilderness, but he then moved the case to Virginia.

At that distance from our office in Alabama, WildLaw can, and will, still handle most of the case, but we needed local counsel to get Ray Vaughan introduced into the Western District Court and to handle a preliminary hearing. Attorneys working on National Forest issues at the Southern Environmental Law Center in Charlottesville, Virginia were asked to join as local counsel, but they declined to assist us in the case. Luckily, Matt Pethybridge, a sole practitioner in Blacksburg, Virginia, agreed to help. Although having no experience in National Forest cases, Matt is enthusiastic and wants to learn so as to help in more cases.

The three sales cover 530 acres of logging in two roadless areas and next to two designated wilderness areas. The sales also impact the scenic views from the Appalachian Trail and the Blue Ridge Parkway. Oral arguments on our summary judgment motion will be heard by the Court on July 28.

On March 30, 1998, WildLaw filed with the United States Fish and Wildlife Service (FWS) a petition to list the Junaluska Salamander (Eurycea junaluska) as an endangered species under the Endangered Species Act. Filed on behalf of Appalachian Voices and the Biodiversity Legal Foundation, the petition seeks protection for an animal one expert called "perhaps the rarest salamander in North America." The FWS did not respond to that petition in the required 90 days.

Thus, WildLaw has now filed on behalf of those two groups a 60-day notice letter telling the FWS of our intent to sue them if they do not initiate listing procedures for the salamander. Under the ESA, we must give them 60-days notice before filing any suit for their failure to comply with the law in this area.

Only seven existing populations are known in southwest North Carolina and southeast Tennessee, most of them falling within three streams in Graham County, North Carolina. Even within those populations, adult individuals are extremely rare. In 10 years of fieldwork, Dr. David Sever, who described the species, has collected only 50 adults; Dr. Sever supports this petition.

Chulafinnee Sale:

The Shoal Creek Ranger District of the Talladega National Forest in the mountains of Alabama is proposing a 4,969-acre timber sale called the Chulafinnee Analysis Area timber sale. In this massive sale, the Forest Service plans to clearcut 918 acres, including 251 acres of hardwood forest that will be converted into pine plantations. All this is despite the fact that the forest already has approximately 50% more pine than was historically there. Also, the excuse for this conversion is to "help" the Red-cockaded Woodpecker (RCW) 40 to 80 years from now; even though, one of the state's top experts on the RCW, Dr. Geoff Hill of Auburn University, has told them converting hardwoods will not help the bird at all and there is not a RCW within 17 miles of this area.

This sale is next to the Talladega Scenic Drive leading into Cheaha State Park, the state's highest point. Several clearcuts will be next to and very visible from the drive. Also, Blue Mountain, one of Alabama's few remaining roadless and potential wilderness areas is just across the scenic drive from this area slated for massive cutting. Having considered just three action alternatives, all of which contain massive even-aged logging, the Ranger is proposing to adopt the largest and most damaging one.

The EA on this sale is short and pathetic. Normally, Forest Service timber sales this large require the preparation of a full Environmental Impact Statement (EIS). Recently the Conecuh National Forest in southern Alabama announced their plans to prepare a full EIS for a 4,273-acre timber sale (see next story). For the Chulafinnee sale, no site-specific information has been collected, and there is no analysis of impacts to wildlife other than generic statements saying nothing bad will happen and unverified computer modeling saying that this will be great for deer.

The comment period on this proposed decision runs through July 24, 1998. Please send letters to District Ranger Joel Gardner, Shoal Creek Ranger District, 450 Highway 46 E, Heflin, Alabama 36264. Tell him that a timber sale of this size and impacts requires a full EIS, that hardwoods should never be converted, that the RCW should not be used as an excuse to log and convert hardwoods, and that this sale should not go forward.

Union-T Sale:

The Talladega District of the Talladega National Forest has re-proposed the Union-T timber sale. Wild Alabama, the Alabama Wilderness Alliance and WildLaw have defeated this bad sale twice. Once again, the Forest Service is coming out with this sale, but this time they have made it larger and even worse by adding more clearcuts of hardwoods for conversion into pine plantations. Apparently, they are being vindictive for our previous success.

Despite this being their third try, the EA on this sale continues to be poor, with no meaningful site-specific information and no consideration of cumulative impacts with other nearby sales. The Forest Service refuses to look into possible impacts to endangered species such as Gray and Indiana Bats.

The comment period on this proposed decision also runs through July 24, 1998. Please send letters to District Ranger Joel Gardner, Talladega Ranger District, 1001 North Street, Talladega, Alabama 35106. (Note different address, as Joel Gardner is ranger over two districts.) Tell him that a timber sale of this size and impacts (especially considering nearby sales such as Rebecca Mountain) requires a full EIS, that hardwoods should never be converted, that the RCW should not be used as an excuse to log and convert hardwoods, that possible impacts to endangered bats need to be documented with scientific data not guesses, and that this sale should not go forward.

The Forest Service has announced that it plans to prepare a full Environmental Impact Statement (EIS) on a plan to clearcut 2,334 acres and thin 1,939 acres in order to restore the Longleaf Pine to many sites in the Conecuh National Forest in southern Alabama. Currently, these areas are occupied by Slash and Loblolly Pine plantations planted there decades ago when the Forest Service was trying to maximize timber production. These areas were once naturally Longleaf Pine.

WildLaw, Wild Alabama and the Alabama Wilderness Alliance have been discussing with the Forest Service the need for an EIS on a project of this size for more than a year, and this is the first time anyone has convinced the Forest Service to do an EIS (instead of the much more cursory EA) on a timber sale in Alabama. Indeed, in the entire Southeast, only one other timber sale that we know of has been forced into an EIS, and that was in a roadless area in North Carolina. In an area of general forest, this appears to be the first timber sale in the Southern Region to be done through an EIS.

Other National Forests throughout the South also engage in timber cuts supposedly for Longleaf restoration, but none of them can approach the record of success and true restoration the Conecuh has; some of them are actually using Longleaf restoration as a cover to convert hardwoods to pine plantations, albeit Longleaf instead of Slash or Loblolly. Some other forests have timber sales much larger than this one and do their analysis through a 30-page EA. Lack of full and adequate environmental analysis is a major problem with timber sales throughout the Southeast. Getting one forest to do an EIS can lead to making other forests also do them when they need to.

A lawsuit WildLaw brought on behalf of Broadened Horizons RiverKeepers, Heartwood, Save America's Forests and The Bankhead Monitor against the TVA and the Army Corps was dismissed in late May This case in Chattanooga challenged the TVA and Corps' decisions to allow a chip mill and 12 chip mill-support dock facilities on the Tennessee River without ever doing any kind of environmental analysis on the impacts from these facilities together. The agencies also never consulted with the Fish and Wildlife Service over these facilities' impacts to more than two dozen endangered species. Numerous timber industry interests intervened in the case, claiming that these facilities are critical to their industry.

Federal District Judge Allen Edgar dismissed the case because he said that the plaintiffs lacked "standing" to sue. One must have standing, a concrete, particularized harm to oneself, in order to sue over some environmental tragedy. Under the standard Judge Edgar set up, a standard not endorsed by any other court, it is unlikely that anyone could have standing to challenge the permitting process of the TVA and the Corps. Some courts and judges have been constructing tough standing technicalities lately in order to avoid addressing the merits of environmental cases they personally do not like. This type of abdication of their duty to the public to decide important cases is sad.

Despite the dismissal of the case, good work came from it. While the lawsuit was pending for almost a year and a half, it acted as a de facto moratorium on chip mill support facilities on the Tennessee. No new permits were granted during that time, and up to six already permitted facilities even closed and stopped operating due to the case. Also, the case has greatly increased awareness of the chip mill problem in the public and governmental areas, as several federal agencies have used the lack of a judicially-enforced solution as a reason to begin agency studies that may limit chip mills.

WildLaw and Wild Alabama have appealed the latest land exchange in the Bankhead National Forest. The Bennett Exchange divests the public of 186 acres of wild land along the shores of Lewis Smith Lake in the southern Bankhead. Mr. Bennett is contributing cut-over lands to the Talladega National Forest (in another part of the state) in order to get these scenic lands to develop into vacation homes along Smith Lake. The Forest Service is using its land exchange program to eliminate all publicly-owned and undeveloped areas along Smith Lake, except for their one developed recreation area which requires an entrance fee. These lands to be exchanged were not put out for bids; Mr. Bennett gets them just because he asked for them first.

Currently, WildLaw and Wild Alabama have a lawsuit in federal court over the land exchange program in the southern Bankhead. Although the suit focuses on the coal strip mine exchanges, it also covers the vacation home exchanges on the lake as well. The federal judge is due to rule this summer.

WildLaw and Wild Alabama are working on defeating a plan to spread herbicides over 634 acres of the Bankhead National Forest. The reason for this proposed action is to kill natural hardwood trees that have sprouted in areas the Forest Service is working to convert to pine plantations. Defying nature and the reality of the place, they want to cover these areas with poisons in order to maintain the pine monoculture they and the timber industry desire.

All of these areas were naturally hardwood forest, and although the Forest Service has already cut down the native forest, we want the real forest to regrow, which it will if nature is left alone. If they are allowed to herbicide these areas as they plan, it could well be 120 years or more before we have a chance to have the natural hardwood forest regrowing in these spots.

The comment period is through July 24, 1998. Write District Ranger James Ramey, Bankhead National Forest, P.O. Box 278, Double Springs, Alabama 35553, and tell him that you oppose this ongoing effort to convert the natural hardwood forests of the Bankhead into more unneeded, subsidized pine plantations. Demand that he choose the "No Action" alternative and let nature be.

Ray Vaughan, WildLaw, and our clients Lamar Marshall (Wild Alabama) and Ned Mudd (Alabama Wilderness Alliance) will be featured in an upcoming issue of Sports Afield magazine. The article was written by David Helvarg, the renown author of the book War on the Greens. Keep a watch out for it.

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