The WildLaw Letter

For Members and Friends March 1999

On February 12, the National Forests in Alabama suspended all timber sales on all four forests due to "irregularities" found in the timber sale program for the Shoal Creek Ranger District in the Talladega National Forest. A phone conversation by Wild Alabama Executive Director Lamar Marshall with the Regional Forester's Office in Atlanta confirmed that this action by the Forest Service is due, in part, to the years of work and litigation done by Wild Alabama and WildLaw over illegal timber sales on all the National Forests in Alabama. According to the Forest Service, this action shutting down the forests was the result of three things: (1) years of appeals and litigation by Wild Alabama and WildLaw showing violations of numerous laws, (2) the recent Inspector General's report showing violations of federal laws in virtually every National Forest timber sale they examined, and (3) inside reports from courageous Forest Service employees who confirmed what we and the Inspector General have been saying. The Inspector General's report is a scathing indictment of the Forest Service's gross noncompliance with the environmental laws. It can be downloaded at http://www.usda.gov/oig/auditrpt/auditrpt.htm

WildLaw and its Executive Director Ray Vaughan have worked on protecting the National Forests in Alabama since the mid-1980s; since the early 1990s, that work has been on behalf of Wild Alabama and the Alabama Wilderness Alliance. In that time we have caught (and proven successfully in court and in administrative appeals) the Forest Service doing the following:

- Failing to consider numerous direct, indirect and cumulative impacts of their timber sales, as required by the National Environmental Policy Act (NEPA);

- Failing to protect endangered, rare species and migratory birds;

- Violating the National Historic Preservation Act by not protecting historic Native American sites on the Bankhead National Forest;

- Using up to 19 times the legal limit of herbicides on the National Forests; and

- Converting natural forests into pine plantations.

Since 1995, legal work by WildLaw and Wild Alabama have halted timber sales on more than 60,000 acres of public lands in the National Forests in Alabama. Just two weeks prior to this shutdown, Regional Forester Elizabeth Estill ruled in our favor in two timber sales on the Talladega (see next article).

Ray Vaughan and Lamar Marshall then met with Regional Forester Estill to discuss this situation. Since we do work in all the National Forests of the region through the organization Wild South, we told her that every National Forest in the South has these same kind of problems. We asked that she shut down timber sales on all National Forests in the South, from Texas to Virginia. She plans to conduct an increased number of surprise audits of districts around the region, and she said that if these problems appear to indeed be wide-spread, she would consider shutting down timber sales on a region-wide scale and conducting new NEPA training for all the districts. We offered to help with that training.

In late January, Regional Forester Elizabeth Estill reversed two timber sales in the mountains of the Talladega National Forest, Alabama. Representing Wild Alabama and the Alabama Wilderness Alliance, WildLaw had filed administrative appeals of these timber sales. The Union-T Sale (655 acres) and the Rebecca Mountain Sale (625 acres) represent large-scale even-aged management designed to create and maintain longleaf pine plantations. WildLaw and its clients had already gotten the Forest Service to drop from these sales 97 acres of hardwood areas that they had planned to convert to pine plantations. Still, the impacts of the two nearby sales together were never addressed by the Forest Service, and their attitude toward endangered species in the areas was cavalier at best.

The Regional Forester ruled that the environmental analysis on both sales failed to identify and consider impacts to migratory birds and their habitats. In particular, she found that the Ranger failed to consider a bird study of the forest done by Dr. Geoff Hill of Auburn University for the Alabama Wilderness Alliance. She also ruled that the Ranger failed to comply with the National Forest Management Act by not disclosing that even-aged management cutting methods were appropriate for these areas.

On January 26, 1999, Montgomery Circuit Court Judge Tracy McCooey struck down the City of Montgomery's weed ordinance, declaring it unconstitutionally vague and overboard. In so doing, Judge McCooey dismissed the criminal case against Georgette Norman for having an organic garden in her yard.

WildLaw represents Ms. Norman, the Executive Director of the Alabama African-American Arts Alliance, in her fight to save her garden and her private property. The City of Montgomery, Alabama prosecuted Georgette because she has an organic garden in her yard on Rosa Parks Avenue in Montgomery. The City's inspector had declared all her 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 organic garden are Choctaw Squash and a wide-variety of 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. These people are the model of urban responsibility and land stewardship, yet the City of Montgomery prosecuted them criminally for not conforming to "lawn culture." Indeed, in his testimony, the City inspector said that he cited her because, "her yard was not like everyone else's."

On February 17, WildLaw sent a 60-day notice letter to the Forest Service stating our intent of filing suit against it if they allowed any logging of any kind in the Bankhead National Forest after that date. The importance of that date is that we learned that Indiana Bats, an endangered species, were found in two caves in the Bankhead. Unless done very carefully and only during certain times of the year, logging can destroy Indiana Bat habitat and even lead to the deaths of the bats themselves. The general types of clearcutting and other even-aged logging practices used in the Bankhead are not compatible with protecting the bats, which need large areas of intact hardwood forests. In other National Forests with Indiana Bats, courts have shut down the logging programs until the logging program was substantially changed to protect the bats.

Since the bats can forage as far as 75 miles from the caves they hibernate in during the winter, the discovery of these two colonies means that the entire Bankhead is potential habitat. Until the whole forest is adequately surveyed and the Forest Service consults with the U.S. Fish and Wildlife Service over a new logging management plan for the Bankhead, we believe that this discovery will mean an end to all logging of any kind there for a long time.

WildLaw filed an administrative appeal for Wild Alabama over the recently adopted Concentrated Animal Feeding Operation (CAFO) regulations adopted for the Alabama Department of Environmental Management (ADEM). The appeal challenges the new hog factory regulations as too weak to protect public health and the environment. The major issues raised are:

(1) The CAFO setbacks (both for lagoons and operations and for land application) are not adequate enough to protect public health and our water quality. (2) There will be no regular inspections of CAFO operations. (3) No financial bonding system (in case of emergency facility closure) is required by the regulations; even though, other ADEM regulations of facilities that can impact public health and the environment do have bonding requirements. (4) Despite the clear legal authority, ADEM and the Commission have imposed no monitoring requirements; groundwater monitoring is not required under the new rule. Several other states have had problems with groundwater pollution from these mega-factory farms. (5) Air monitoring is not required despite the health problems associated with hydrogen sulfide emissions from large waste lagoons. (6) ADEM and the Commission have chosen to keep rural Alabama uninformed about new CAFOs moving into their area. Public notice of new CAFOs (poultry or hogs) consists of posting the operation's registration on ADEM's web site. Those who do not have access to the Internet, will not be informed of any new CAFO facilities in their neighborhood. (7) The regulations do not adequately address lagoon size or design such that public health and the environment are protected.

The appeal is to the Alabama Environmental Management Commission, which oversees ADEM. A full evidentiary hearing on how and why ADEM choose to make the new rules as lax as they did will occur in the next couple of months.

Regional Forester Elizabeth Estill ruled in our favor in an appeal of the 4,369-acre Chulafinnee Timber Sale proposed by the Shoal Creek Ranger District of the Talladega National Forest in the mountains of Alabama. This sale is next to the Talladega Scenic Drive leading into Cheaha State Park, the state's highest point. Several clearcuts would have been next to or very visible from the drive. Also, Blue Mountain, one of Alabama's few remaining roadless areas and potential wilderness areas is just across the scenic drive from this area slated for massive cutting.

Filed on behalf of Wild Alabama and the Alabama Wilderness Alliance, this appeal sought to protect rare wildlife, natural forests and the scenic beauty of Alabama's most mountainous area. Ms. Estill ruled that the Environmental Assessment (EA) did not adequately describe mitigation measures or disclose environmental effects of mitigated actions. She also held that cumulative effects were not adequately considered in the EA in compliance with NEPA.

The EA on this sale was 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. The sale would also have impacted endangered Gray Bats.

On January 19, 1999, WildLaw filed three separate lawsuits against Secretary of Interior Bruce Babbitt and the various agencies he heads. In the first case, WildLaw filed a lawsuit on behalf of Citizens Opposing Northern Alabama Pipeline Project (CONAPP) and Wild Alabama against the U.S. Fish and Wildlife Service (FWS) for permitting Southern Natural Gas Co. (SONAT) to drill a natural gas pipeline across the Wheeler National Wildlife Refuge. The FWS permitted the drilling without ever doing site-specific environmental analysis as required by the National Environmental Policy Act and without complying with the agency's established policy against permitting new pipeline right-of-ways across the refuge. After we filed the suit, SONAT agreed not to start site-preparation work for the drilling until after the judge could hold a preliminary injunction hearing on February 4.

At that hearing, Judge Sharon Blackburn clearly did not understand even the most basic concepts of the National Environmental Policy Act and the Endangered Species Act. Ruling that we could not prove death to endangered species would occur no matter what happened, she refused to grant us a preliminary injunction. Under the law, all we had to prove was that impacts to endangered species might occur in order to get the injunction, but the judge refused to follow the statutes and the cases in this area.

SONAT is now drilling in the Refuge as its first phase plan to build an unneeded 120-mile pipeline through private lands and public forests in northern Alabama.

On January 19, WildLaw filed a second lawsuit against Sec. of Interior Bruce Babbitt's agency the National Park Service. On behalf of Wild Alabama, WildLaw sued the National Park Service for their failure to comply with the Endangered Species Act (ESA) and the Clean Water Act in their maintenance and development of the roads in Little River Canyon National Preserve. Recent road maintenance work has destroyed Green Pitcher Plants, a listed endangered species, damaged their habitat and caused pollution to degrade the virtually pristine waters of Little River inside the park.

In the third lawsuit filed on January 19,WildLaw sued Babbitt and the Fish and Wildlife Service. On behalf of the Biodiversity Legal Foundation, Ned Mudd and Wild Alabama, WildLaw sued Babbitt and the FWS for their failure to designate critical habitat for the Cahaba Shiner, as required by the Endangered Species Act (ESA). The Cahaba Shiner is a small, silvery fish and a listed endangered species found only in Alabama. Its habitat in the Cahaba River is well known and the ESA mandates critical habitat designation in order to protect the species and its environmental requirements.

In response to a lawsuit filed by WildLaw and a petition filed by our client the Society To Appreciate the Resources of Turkey Creek (START), the U.S. Fish and Wildlife Service announced a 90-day finding on our petition to list the Vermilion Darter (Etheostoma chermocki) under the Endangered Species Act. The FWS found that the petition presented substantial information indicating that listing this species may be warranted. A status review is being initiated. This is the beginning phase of getting this rare fish listed and fully protected. This small, colorful fish lives in only a four-mile stretch of Turkey Creek in Jefferson County, Alabama. The darter was threatened by the building of a massive jail complex, which our clients and we successfully defeated, but problems from sedimentation from construction projects upstream and pollution from a sewage treatment plant and a landfill continue to threaten the darter.

WildLaw's Executive Director Ray Vaughan and our clients Lamar Marshall (Wild Alabama) and Ned Mudd (Alabama Wilderness Alliance and Biodiversity Legal Foundation) were interviewed by National Public Radio for their show Living on Earth. The show should air in late March.

WildLaw's client Wild Alabama and its founder Lamar Marshall will be featured in an article in the April 1999 issue of Outside magazine, which should be in bookstores now. Outside is one of the largest and most widely-read magazine about the outdoors. Pick up a copy.

WildLaw's Founder and Executive Director Ray Vaughan was awarded the Environmental Attorney of the Year Award by the University of Alabama School of Law. This is the second time Ray has won this honor, having been the first recipient of the award in 1992. He is now the first two-time winner. The work of WildLaw in 1997 and 1998 was cited as the basis for the award. The award will be given out on March 19 at the Law School.

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