The WildLaw Letter
For Members and Friends March 2002
On March 1, WildLaw moved its Montgomery office. Although our offices had been broken into three times in January and February (see article later), we had planned to move several months ago in order to have more space and to reduce commute distances. Due to the distance of the new office from the old one in downtown, we were not able to keep our phone numbers.
The new address and phone numbers are:
WildLaw 8116 Old Federal Road, Suite C Montgomery, AL 36117 334/396-4729 334/396-9076 (fax)On behalf of Wild Alabama, WildLaw sued the Tennessee Valley Authority for its decision to transfer 650 acres of public park land to be used as a golf course by the Retirement Systems of Alabama. Although the TVA stated that its decision to approve the golf course was "conditional," TVA never defined what "conditional" means; TVA Board members stated that they supported the golf course and that they would approve it as soon as the environmental review work was done. Under the National Environmental Policy Act (NEPA), a federal agency cannot make a decision until after the environmental review work is completed. Here, the NEPA work has just started and is nowhere near completion. Preordaining a decision before the NEPA work is completed makes the entire NEPA process and the public participation process nothing but fraudulent shams.
Here, the TVA has preordained its alternatives to just one, the proposed golf course wanted by the RSA. TVA''s chairman Glenn McCulloch publicly that TVA would "conditionally endorse" the golf course. He also admitted that the impacts from the proposal would be significant by stating that it would be "an economic development project that could be a tremendous plus for the Shoals region." Florence Mayor Dick Jordan also admitted that this proposal will have significant impacts; he stated, "This shows me that TVA recognizes the importance of this project to the economic development of Colbert and Lauderdale counties."
In a closed-door meeting with Alabama's two US senators (both notorious anti-environmentalists) and Congressman Cramer, TVA made it clear to the congressional delegation that this proposal was a "done deal." As stated by Congressman Cramer, "I hope RSA will come away from the meeting with the clear message that TVA is going to do everything they can to make this happen and as quickly as they can." According to Simpson Russell, chairman of the Tennessee Valley Exhibit Commission and an attendee at the closed-door political meeting, the TVA Board Members "fully support the project and want to see it happen." On February 26, 2002, that same day, TVA publicly announced:
"After careful consideration of the issues, the TVA Board has announced that, subject to federal law, TVA conditionally endorses the concept put forward by the Retirement Systems of Alabama (RSA) to develop land for a golf course and hotel complex in the Muscle Shoals Reservations community."
TVA has not explained how it gave "careful consideration" to the many complex issues in this matter when the decision was made the very day after the public comment period ended and was made long before the environmental review process is completed.
WildLaw is also filing a complaint with TVA's Office of Inspector General, an independent auditor within the agency. The Inspector General is appointed by the President, not the TVA's Board. We will be asking the Inspector General to investigate the Board's blatant violations of NEPA and the Administrative Procedures Act, to investigate if improper political influence forced this decision, and to audit how the TVA can give away a piece of public property worth more than half a billion dollars without the taxpayers receiving any corresponding benefit.
In response to our complaint, TVA has agreed before the Judge not to transfer the land or allow the RSA to cut trees until at least March 31. Another hearing will be held March 25.
On behalf of the Biodiversity Legal Foundation and Wild Alabama, WildLaw has filed a formal petition with the U.S. Environmental Protection Agency to have the EPA withdraw Clean Water Act "primacy" from the Alabama Department of Environmental Management. Under the Clean Water Act, the EPA may approve state-run permitting and enforcement programs that are equivalent or more stringent than the EPA''s program; this approval of a state program is called giving the state "primacy." When a state has primacy, a facility wishing to pollute a river or stream needs only to go to the state agency to get a permit to do so. Without primacy, the polluters must go to EPA to get their permits.
Since being delegated primacy by EPA, ADEM has administered a water quality program that is intended to maintain the biological, chemical, and physical integrity of Alabama''s waters. The water bodies in Alabama are regarded by the scientific community as being some of the nation''s most biologically significant rivers. Alabama has more species of fish than any other state. Alabama has more species of aquatic mussels and snails than any other place on Earth. Alabama has dozens of aquatic species listed the Endangered Species Act list as either Threatened or Endangered. According to US Fish and Wildlife Service, adverse impacts to these species include habitat destruction (adverse modification) and degraded water quality.
ADEM has an affirmative duty, under both Federal and state law, to ensure that all existing uses of Alabama''s waters are adequately maintained and protected. Any state regulatory scheme, including the issuance of NPDES permits, must consider the effect of said scheme upon all native species of wildlife that reside in State waters. Yet, after years of neglect, lack of enforcement, and unacceptable administration of the State''s water quality program (including permit writing and issuance), many of Alabama''s waters, especially the Cahaba, have slipped into disrepair and biological imperilment.
If ADEM had been diligent in its mandate to restore Alabama''s water quality, so many waters would not have been placed upon the 303(d) list of impaired waters. Under ADEM''s watch, several new aquatic species were listed to the ESA. The fact that impaired water quality was determined to be linked to the decline of such species as the Cahaba Shiner and the Goldline Darter is further proof that something is amiss with ADEM''s management ability.
We are raising several issues in the petition:
* ADEM is grossly underfunded, so much so that it cannot maintain a CWA program even close to being equivalent to the federal one.
* ADEM enforcement is actually declining and is expected to decline further, making the program not equivalent to the federal one.
* ADEM does not listen to or respond to comments and concerns from the public and from other agencies as the EPA is required to do, making the program not equivalent to the federal one.
* ADEM does not interpret or enforce the antidegradation policy in a manner equivalent to the federal program.
* ADEM refuses to consider impacts to species listed under the Endangered Species Act, as the EPA must in the federal program. Thus, the ADEM program is not equivalent to the federal program.
* ADEM has no proper numeric criteria for numerous pollutants that EPA does have.
* ADEM does not protect impaired and other waters from nonpoint source pollution as the federal program requires.
* ADEM''s procedures for the public to administratively contest NPDES permits are not equivalent to the federal program.
Thanks to all the calls, letters and e-mails sent by people who responded to a previous WildLaw alert, the Congress in conference committee cut $4,250,000 from a "scenic" drive appropriation Alabama Senator Richard Shelby put into the 2002 Transportation Appropriations bill. The original $5,000,000 was for design and initial paving of an extension to the Talladega Scenic Drive in the Talladega National Forest. The $750,000 that was approved by Congress and signed by President Bush is for Alabama Scenic Byways in general and most likely will be used to develop a management plan for the existing scenic drive, with a possibility of some planning work for the expansion. But all the pork designed to fast-track the expansion of the drive was cut.
The Alabama Department of Transportation (ALDOT) plans to extend the 27-mile Talladega Scenic Drive in the Talladega National Forest. Doing so in the wrong place would destroy tens-of-thousands of acres of wild mountain lands and split a proposed wilderness area. This is Alabama's last wild mountain range.
Earlier in the year, U.S. Senator Richard Shelby stuck $5 million of pork money into the transportation appropriations bill in order to begin planning, "improving" and paving this dirt road to extend the scenic drive south of Adams Gap. The plan is to extend the drive for up to 20 or more miles along the mountains' spine, paving over the last remote ridgetops. The road will despoil areas that the Alabama Environmental Council, Wild Alabama, WildLaw and The Wilderness Society have proposed as scenic areas, recreation areas and the Rebecca Mountain Wilderness in the new National Forests management plan, currently being revised by the USFS. Parts of the Pinhoti Trail, Alabama's longest, will run next to and near this proposed extension, making hiking there an experience of nothing more than walking along a highway, if the extension is built. But an alternative route that runs down into the valley east of the mountains would link to the current scenic drive and then upgrade existing state roads and thereby provide many more alternatives for local businesses to provide services to tourists who use the drive. Momentum for that alternative route is growing.
WildLaw and our client Wild Alabama are featured in the November-December 2001 issue of Timber Harvesting magazine, "America's Only National Logging & Forestry Magazine." The article covers a demonstration of cut-to-length (CTL) logging techniques done in the Kisatchie National Forest in October. Also featured in the article were Dr. Bob Lanford of Auburn University and the Earth Justice Legal Defense Fund.
The article in Timber Harvesting can be found at:
On January 28, 2002, at 3:00 in the morning, someone broke into the building where WildLaw's Montgomery, Alabama headquarters shared office space with three other attorneys. Muddy footprints marked the perpetrator's passage through the building. With the alarm tripped and the police on their way, this criminal took his time to walk through all four attorney offices and two paralegal offices to examine each office and each computer. He then stole only WildLaw Executive Director Ray Vaughan's computer, after carefully disconnecting it from its surge protector, a printer, a scanner and from the Ethernet connection on the wall, and an old WildLaw laptop sitting on a shelf. All the other computers in the building were newer, more modern and more expensive, but none were touched despite the footprints showing that the goon had walked up to and looked at each one. The thief then took a cheap VCR sitting on a conference table and left, leaving an expensive video recorder and other more easily carried electronics that were sitting near the VCR. A typical thief grabs the closest, most expensive and easiest to carry items and beats a hasty retreat, but this person took precious time to make sure he got WildLaw's computers and then grabbed an inexpensive item to add to the image that this was a mere burglary instead of something more targeted and sinister.
If this was an attempt to steal WildLaw files instead of just another burglary, the perpetrator failed. Unknown to the thief then, but obvious now, is that the stolen computers had no legal files on them. Since the desktop was an old computer, it had only photos and video files (all backed up elsewhere). All of Ray's legal files are kept on a newer laptop computer that he takes home each day (also backed up elsewhere).
Ten days later, the office was broken into for a second time. Once again, muddy footprints marked the perpetrators' (this time there were at least two) passage through the building. They then stole only WildLaw Executive Director Ray Vaughan's computer, after once again carefully disconnecting it from its surge protector, a printer, a scanner and from the Ethernet connection on the wall. This was an old computer pulled back into service after Ray's other computer was stolen Jan. 28. All the other computers in the building were not touched despite the footprints showing that the goons had walked up to and looked at them. The thieves then took a video camera from another attorney's office and left. The Police dusted the office and no fingerprints were found.
The perpetrators got something this time. This computer did have some legal files loaded onto it; all of them are backed up elsewhere. Still, none of the files held secret information; what WildLaw does and our goals and reasons for what we do are all open public knowledge.
Several days later, the office was broken into for a third time. During this break-in, the criminals figured out how to avoid the motion detectors. They threw all of Ray's things and papers out of his desk but stole nothing other than some food. They apparently took the time to make sandwiches and eat them while there.
In partnership with the Utah Environmental Congress, WildLaw is opening a Southwest office in Salt Lake City, Utah. The purpose of this office will be to work on public lands defense (mostly National Forests) in Utah, Colorado, northern Arizona and northern New Mexico. WildLaw and the UEC are currently interviewing applicants. Work will include cases involving National Forest protection, the Endangered Species Act, NEPA, and a broad range of other federal laws and regulations dealing with public lands. This is WildLaw's first office in the western U.S., and the staff attorney will be housed in the offices of the UEC. The UEC is Utah's premier forest watch organization, handling appeals and litigation to protect the wild lands, wildlife and beauty of Utah's six National Forests. While much of the work will involve National Forest protection in Utah with the UEC as the main client, the attorney will be available to represent other forest protection organizations in the Four Corners states.