The WildLaw Letter

For Members and Friends March 2000

The Ottawa National Forest in Michigan withdrew two of the three illegal timber sales identified in a recent WildLaw lawsuit filed on behalf of our clients, Heartwood and Northwoods Wilderness Recovery. The two withdrawn timber sales total 2,300 acres including 250 acres of logging within a wild and scenic river corridor. Claims raised in the lawsuit include: over-logging of northern hardwoods, logging within wild and scenic river corridors, failure to consider cumulative impacts, and failure to consider a reasonable range of alternatives. The remaining timber sale in the case proposes to cut over 900 acres of northern hardwoods located adjacent to the designated Sylvania Wilderness area, which contains populations of rare orchids, bald eagles, loons, and ospreys. Michigan's National Forests rank third in the nation in terms of wood production by state according to a recent ranking by American Lands Alliance.

WildLaw's Southern Appalachian Office filed suit in the United States Court for the Eastern District of North Carolina seeking a permanent injunction 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 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 is arguing that the Environmental Assessment for this proposed action is completely inadequate and that a full scale EIS must be completed.

Unlike a legally adequate EA - which considers a reasonable range of alternatives, including a no action alternative - the Homanit EA does not present even one single alternative to the proposed action. Moreover, the federal, state, and local decision-making authorities ignored significant secondary and cumulative environmental impacts which would require the preparation of an EIS. For example, the EA completely ignores the fact that this plant will cause a significant increase in clearcutting which will further alter the composition of forest types in a region where over 100 new chip mills have opened during the last 15 years, despite numerous written comments submitted by federal and state agencies to that effect.

In cases such as this one, the EA serves no useful purpose because the federal, state, and local decision-making authorities ignored their legal environmental review duties and merely used the EA to present their predecided conclusion to go forward with Homanit, Inc.'s proposal regardless of what environmental impacts will occur. This "see no evil" approach is exactly the type of agency decision-making Congress intended to prevent when it enacted the National Environmental Policy Act, and it is this Act which allows WildLaw to challenge this unlawful government action.

WildLaw filed suit against the U.S. Forest Service in the United States Court for the Eastern District of Tennessee under the Freedom of Information Act. In an effort to expose the inadequate botanical surveys relied upon by Cherokee National Forest officials, Dr. Foster Levy requested all of the botanical surveys conducted on the Cherokee during the last three years. However, the Forest Service has refused to turn over at least three-fourths of the requested documents and they do not even claim to have a legally valid excuse. The impact of this deliberate unlawful act is that it insures that forest watch activists are uninformed and unable to effectively monitor the government's management of our public lands. WildLaw seeks the immediate release of all of the requested public documents and will demand an investigation into the actions of the responsible Forest Service officials.

On behalf of Appalachian Voices, Western North Carolina Alliance, Southern Appalachian Biodiversity Project, the Pisgah Group of the Sierra Club, and the Wenoca Group of the Sierra Club, WildLaw has requested that the Forest Service perform a roadless character evaluation for the area surrounding Big Mountain Gap in the Pisgah Ranger District. Thanks in part to the heightened awareness about the importance of roadless areas brought on by President Clinton's roadless initiative and the proposed National Forest System Road Management Strategy, it has come to our attention that this major unroaded area of the Pisgah National Forest was overlooked during the last roadless evaluation. There are 5,628 acres of contiguous forest in public ownership surrounding Big Mountain Gap (and over 9,000 unroaded acres when private lands are included), and the density of improved roads within this area is far below the .5 miles per 1,000 acre limit used in assessing SAA roadless areas. Hikers enjoy solitude along the old woods trails within its boundaries. In 1995, surveys by the NC Wildlife Resources Commission found native brook trout in Sawmill Creek and Cherryfield Creek, an indication of the area's high water quality. Botanical inventories by USFS and private consultants have also uncovered several rare herbaceous species in the area, including Hexastylis contracta, Smilax biltmoreana, and Cyrpripedium pubescens. Old-growth forest lines the upper reaches of Sawmill Creek, and the area contains a rare mountain wetland. This area also boasts a large semi-primitive core, under the naturalness and road density standards found in the Forest Service Handbook and the Recreational Opportunity Spectrum (ROS). In short, the area surrounding Big Mountain Gap plainly meets the basic standards set by the Wilderness Act: it provides "outstanding opportunities for solitude" and "a primitive and unconfined type of recreation."

Despite the above facts, our examination of the process documents used to evaluate roadless areas during the last Land and Resource Management Plan revision show that this large unroaded area was not analyzed. It was also ignored during the updated roadless inventory done for the Southern Appalachian Assessment. We are puzzled as to why, since it contains the same high-priority values for biodiversity and backcountry recreation as those inventoried in the Southern Appalachian Assessment. Also, less than 13% of the Pisgah Ranger District is currently considered roadless. With roughly 6 million visitors a year, the district desperately needs another semi-primitive backcountry area of this caliber.

This unroaded tract of forest is currently threatened by a planned re-routing of NC 215 through public and private land, proposed by the North Carolina Department of Transportation (NCDOT). Given that this project would irrevocably damage the roadless character of this tract, and given that neither the Forest Service or NCDOT examined the roadless values of this parcel during their joint Environmental Assessment, WildLaw is urging that this roadless evaluation be given top priority. Furthermore, we are asking that the Forest Service delay any and all decisions regarding the Hwy. 215 project until this evaluation is completed and incorporated into a revised Environmental Assessment.

On behalf of Wild Alabama, WildLaw has sent notice to the Alabama Department of Transportation that we will sue them over their cutting of trees along state interstates and highways. The ALDOT is allowing billboard owners to cut and top state-owned trees in the state right-of-way along interstates and highways without those billboard owners compensating the state The State itself is also logging trees along the sides and in the medians of the interstates, and the State has refused to make public documents related to that cutting.

Alabama's Constitution forbids the State from giving anything of value to a commercial enterprise without receiving fair market value for it. By allowing billboard owners to top and cut state-owned trees, the ALDOT is violating that prohibition.

On behalf of the Southern Appalachian Biodiversity Project, WildLaw appealed an herbicide project on the Uwharrie National Forest in North Carolina. The project proposes to poison "wildlife openings" with Roundup, killing all existing vegetation so that deer-attracting plants can be grown there. The Uwharrie District dismissed the possible harmful effects that Roundup applications to the project area could have on plant and animal species in and around the project area that may ingest treated plants. The Environmental Assessment excludes Roundup's potential effects to soil microbes, earthworms, and insects. Exposure to small levels of Roundup could cause cumulative impacts to human health based on recent studies that link Roundup exposure to cancer. The study, by eminent oncologists Dr. Lennart Hardell and Dr. Mikael Eriksson of Sweden, has revealed clear links between glyphosate, the active ingredient in Roundup, to non-Hodgkin's lymphoma, a form of cancer. Additionally, there is no emergency plan given in case of a Roundup spill or other emergency concerning the herbicide.

The Biodiversity Legal Foundation (BLF), Wild Alabama and Edward W. Mudd, Jr., filed suit against Secretary of Interior Bruce Babbitt, the Department of Interior, and the United States Fish and Wildlife Service (FWS) for their failure to comply with the Federal Advisory Committee Act (FACA) when they developed in secret a "conservation agreement" for the Alabama Sturgeon. Industry groups and politicians are arguing that the "conservation agreement" means that Babbitt does not have to list the Alabama Sturgeon as an endangered species under the Endangered Species Act (ESA).

The "conservation agreement" is entirely voluntary; there are no mandatory requirements for any agency or party to it. If the FWS utilizes it in not listing the Sturgeon under the ESA, the damage to efforts to protect this extremely rare fish will suffer greatly, because courts have uniformly held that "conservation agreements" cannot be used to prevent a listing of a species under the ESA unless the "conservation agreements" have mandatory and binding provisions that equal the level of legal protection given by listing itself. Indeed, industry groups could (and have hinted they might) walk away from the "conservation agreement" at any time things do not go they way they want. Even Sec. Babbitt and the FWS could refuse to do anything to help the Sturgeon after refusing to list it and claim that the "conservation agreement" was not binding.

Under the FACA, it is illegal for an agency to use the product of an illegal advisory committee process. We are asking the Federal Court of the Middle District of Alabama to enjoin Sec. Babbitt and the FWS and order that they cannot use or consider the "conservation agreement" in any way.

The Biodiversity Legal Foundation (BLF), Wild Alabama and Edward W. Mudd, Jr., announced that they will file suit against Secretary of Interior Bruce Babbitt, the Department of Interior, and the United States Fish and Wildlife Service (FWS) for their failure to list the Alabama Sturgeon as an endangered species under the Endangered Species Act (ESA). In late March, the FWS announced that they would not make a final decision on the proposal to list the Alabama Sturgeon as endangered by the legally-mandated deadline of March 26, 2000, because they wanted more time to read comments on the proposal. Unfortunately, the ESA is crystal clear that a decision on a listing proposal cannot be delayed for such a reason.

"Once again, Bruce Babbitt has broken the law. This is clearly a political decision designed to help Al Gore in his run for the Presidency by delaying this decision," said Birmingham musician and attorney Edward W. Mudd, Jr., a board member of the BLF. "But the law and science clearly say that this fish must be protected now."

Alabama has more species of fish than any other state in the nation, yet as this decision by Secretary Babbitt shows, our wildlife and water resource heritages are held hostage to the whims of big polluters who want everything for themselves. The Alabama Sturgeon is the rarest unprotected fish in North America, and if we cannot protect it, what can we protect?

Under the ESA, to initiate a lawsuit against the Secretary of Interior for breaking the law, one must give the Secretary 60 days advance notice. The action filed by the BLF, Wild Alabama and Mr. Mudd is that 60-day notice.

The City of Montgomery, Alabama dismissed its case against Georgette Norman for violating its "weed" ordinance by planting an organic garden in her yard. In 1998, the City prosecuted Georgette for having an organic garden in her yard, and it declared all her rare plants "weeds" and ordered them destroyed. In January 1999, Montgomery Circuit Court Judge Tracy McCooey struck down the City of Montgomery's weed ordinance, declaring it unconstitutionally vague and overboard. Then on appeal, the Alabama Court of Criminal Appeals reversed that court's decision and upheld the weed ordinance. The Court of Criminal Appeals cited numerous cases about weed ordinances from other parts of the country and then failed to follow any of them. In its opinion, the Court ruled that a "weed" is "any plant over 12 inches high." It included the 100+ year old Live Oaks in the historic parts of town. It included every azalea bush, every rose bush and day lily in town.

We requested that the Alabama Supreme Court review the flawed opinion of the Court of Criminal Appeals, and after the Supreme Court ordered a review, the City agreed to dismiss the charges against Georgette. The City has also agreed to work with us to revise the ordinance so that it will truly apply only to weeds and not to organic gardens and other cultivated plants.

Hopefully, this shows the new direction of the City of Montgomery under its new mayor Bobby Bright, a direction that will be inclusive of people who try new things and who want to better their community through new methods.

On March 15, 2000, Alabama Public Television hosted a live discussion of the Endangered Species Act and the Alabama Sturgeon. WildLaw Executive Director Ray Vaughan debated Bill Satterfield, the Balch & Bingham attorney who masterminded the now eight-year industry campaign against protecting the Sturgeon as an endangered species. This program can be viewed from APT's archive on the Web. Go to http://www.aptv.org/ForTheRecord/ and click on "Click here to watch Past Shows" and then click on the March 15, 2000 show to watch it in streaming video. It should stay on the web site until mid-April.

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 and WildLaw2@aol.com for Aimee Smith.

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 Kellam Warren and WildLawNC2@aol.com for Danny Daniels.

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

300-B Water Street, Suite 214

Montgomery, Alabama 36104