The WildLaw Letter

For Members and Friends May 2002

After working for WildLaw since August 1998, Leigh Haynie is leaving May 31. Leigh was the first staff attorney WildLaw ever hired, and in her first year working in our Alabama office, she stopped more than 13,000 acres of illegal timber sales in the National Forests of Alabama, Mississippi and Louisiana. She then left to start up and head our North Woods office in Minnesota where Leigh won some of the first National Forest appeals and cases ever in that part of the country. Her work there protected forests, wild and scenic rivers, the Boundary Waters Canoe Area, Lynx and much more.

Leigh's husband Doug has joined the FBI, and they are moving to Louisiana. Although Doug himself will not likely being doing work related to environmental issues, the fact is that the FBI and Justice Department under the current Administration are very strongly anti-environmental forces. Leigh felt it best that she no longer be affiliated with WildLaw and our client organizations in order to avoid any appearance of a problem.

We will all miss Leigh terribly, as she has always exemplified what is best about WildLaw and our work. Whether we will be able to continue our North Woods office is unknown at this time, but the need is great up there, as that region has the heaviest National Forest logging of any part of the country.

On behalf of the Utah Environmental Congress, WildLaw won the first species viability lawsuit ever against the Forest Service in Utah. The case was over the South Manti salvage timber sale in the Manti-La Sal National Forest and involved logging over more than 25,000 acres.

The Forest Service admitted that the Management Indicator Species (MIS) Blue Grouse was in the area proposed to be logged, but they had not bothered to collect survey data on the Grouse since at least 1992. Following the 1999 decision of the Eleventh Circuit Court of Appeals (located in Atlanta) in Sierra Club v. Martin on whether surveys for MIS are required in order to maintain their viability, Judge Dale Kimball held that the Forest Service must survey for MIS that are in a project area before they can log that area.

US District Judge Dale Kimball agreed with the UEC that the Manti La Sal National Forest violated the National Forest Management Act, as well as its own Forest Plan in failing to monitor for this important forest species. "Judge Kimball did the wise thing for the people of Utah and the United States. Utah's National Forests are national treasures and holding the Forest Service accountable to the law is common sense," said Ray Vaughan, WildLaw Executive Director and attorney for the UEC.

"We hope this decision sends a clear message to the Forest Service that obeying federal environmental laws is not an option," said Denise Boggs, Executive Director of the UEC. "This decision represents a clear victory for all the wildlife that live on the National Forests in Utah. The Forest Service must now have hard population data for each MIS species in advance of any logging activities,"

The UEC has been diligently monitoring timber sales and other activities on all six of Utah's National Forests since its founding three years ago. The UEC has appealed numerous timber sales and began litigating when it found the Forest Service would not obey the law until the courts ordered it to do so. The UEC will persist in monitoring Forest Service activities and hold the agency accountable to environmental laws. WildLaw will be hiring an attorney this summer who will be housed in UEC's office to assist in these efforts.

In response to comments from WildLaw, the Chequamegon-Nicolet National Forest modified its decision to spray for Gypsy Moths in the Lakewood-Laona district. Instead of relying on Btk, a broad-spectrum, non-specific bacterial agent lethal to all moths and butterflies, including the Karner Blue Butterfly, an endangered species, the Forest Service chose to use Gypcheck a gypsy-moth specific virus formulation. Thanks to the expertise and advice of Dr. Tom Rooney of the University of Wisconsin, WildLaw was able to make knowledgeable comments to the Forest Service on behalf of the Superior Wilderness Action Network. In addition to the problems of Btk, the Forest Service failed to consider an adequate range of alternatives, provide the Biological Evaluation for the project, and consider the cumulative impacts of the spraying on the North Branch of the Oconto River and the Wood Turtle.

WildLaw's Virginias Office has filed suit against the McJennings timber sale in the Jefferson National Forest of Virginia. The McJennings timber sale involves intensive even-aged logging of 179 acres located within the Glenwood and Pedlar Ranger District of the Jefferson National Forest, Virginia. The primary purpose of the sale is to assure oak tree regeneration following gypsy moth infestation. The location of the McJennings sale is within the range, contains suitable habitat, and is immediately adjacent to the Conservation Area for the Peaks of Otter Salamander (POS). The POS is a species of concern variously classified as sensitive, very rare, and imperiled, and subject to an interagency Conservation Agreement and accompanying Habitat Conservation Assessment.

Plaintiffs Appalachian Voices and Virginia Forest Watch allege that the Forest Service has failed to uphold its responsibility to reduce threats to the POS and/or its habitat and eliminate the need to list the species under the ESA. Instead, the Forest Service is threatening viability of the POS by arbitrarily and capriciously failing to adequately survey for the POS and failing to implement timber harvest mitigation criteria detailed in the Conservation Agreement. Impacts to the POS and its habitat will be significant, requiring the preparation of an EIS that was not done in this case.

Similarly, the Forest Service has failed to assure the viability of any management indicator species (MIS) because it did not collect site specific MIS data as required by NFMA and its implementing regulations. The Forest Service relies on information such as hunter-harvest-survey indices and age-class data for habitat assessment to make baseless projections about MIS impacts. The Forest Service has no information in regard to minimum numbers of reproductive individuals enabling the determination of whether distribution of suitable habitat is adequate to assure interaction.

Finally, the Forest Service failed to consider a reasonable range of alternatives addressing the purpose of the sale. All alternatives propose the cutting of cove poplars that are not impacted by the gypsy moth. The Forest Service did not consider any alternative to cut affected oak stands only.

On behalf of the Western North Carolina Alliance and the Southern Appalachian Biodivesity Project, WildLaw appealed a Forest Service decision to allow logging in the Lambert Cove area of the Nantahala National Forest, an area home to a rare salamander.

The Forest Service plans to allow several types of tree removal on about 108 acres. The plan does not involve clear-cutting, but does call for a prescribed burn to remove underbrush on 305 acres.

The Forest Service says the move should help create young forest habitat that will benefit some types of wildlife including deer. However, the benefit to some species comes at the expense of others, in this case the Seepage salamander.

"They're managing for species that don't have viability concerns. There's no shortage of deer, there's no shortage of grouse, there's no shortage of turkeys," said Marty Bergoffen, campaign coordinator for the Southern Appalachian Biodiversity Project. The salamander is sensitive to climate changes and removing trees from the forest will affect the species in the Lambert Cove area.

Bob Gale with the WNCA said the Forest Service also failed to evaluate the cumulative effects of the timber operations on soil and aquatic resources in the area.

WildLaw and Wild Alabama voluntarily dismissed our lawsuit against the Tennessee Valley Authority. After WildLaw sued the TVA on behalf of Wild Alabama, the Retirement Systems of Alabama and the local governments withdrew their plan to use more than 900 acres of TVA public forest land as a golf course and associated development. RSA now plans to build the course on private lands about two miles from the TVA site. We have contended all along that private lands were the appropriate place for this kind of development; public lands belong to everyone, not just the elitist few.

David Bronner, the head of the RSA, said that "there were too many problems with locating the Robert Trent Jones Golf Trail Course on the TVA Reservation in Muscle Shoals." Strange how 100-year-old trees, nature trails, migratory songbirds, state champion trees, endangered species, CCC works, Civil War cemeteries, and ancient Native American archeological sites all on one piece of ground are considered "problems" by private development interests. Everyone else thinks they are great public assets that should be left as they are. Thanks to the wonderful work of local community activists and our lawsuit, they will be left as they are for now.

Documents acquired from the TVA under the Freedom of Information Act show that the RSA planned to build NINE fairways in the areas in and around the Small Wild Area on the Reservation. The finest old growth forest and hiking trails would have been destroyed for this development.

On behalf of the East Central Alabama Alliance for Quality Living, WildLaw filed a lawsuit in Montgomery County Circuit Court against the Alabama Department of Environmental Management (ADEM), ADEM Director James Warr and the Alabama Environmental Management Commission (AEMC). The suit is over the AEMC's adoption of "emergency" regulations for ADEM so that ADEM could issue new water pollution permits to facilities that have pending applications.

On April 9, 2002, the AEMC, at the request of ADEM and Mr. Warr, adopted "emergency" regulations dealing with implementation policies and forms for the state's antidegradation policy under the federal Clean Water Act and the Alabama Water Pollution Control Act. These regulations were substantially the same as regulations struck down by the Alabama Supreme Court on March 1, 2002.

Adoption of an emergency rule without notice and comment is authorized only if there is an immediate danger to the public health, safety, or welfare. All the state claimed was that not being able to allow more water pollution for four months (the time it takes to adopt normal rules with public input) would be a "threat" to about 20 polluters that wanted permits right away.

When we went before Judge Gene Reese on our motion for a preliminary injunction, numerous industrial interests intervened in the case. Judge Reese ruled in our favor and granted a preliminary injunction against the "emergency" regulations. The big polluters have appealed that ruling.

Nationally-renown attorney Jere Beasley is also on the lawsuit representing the Alliance.

The Winnie North timber sale in the Blackduck District of the Chippewa National Forest in Minnesota was withdrawn by District Ranger Fredrick Pick due to the finding of three additional Northern Goshawk nests. WildLaw appealed this sale on behalf of Superior Wilderness Action Network and provided the language for the Sierra Club's separate administrative appeal. The Winnie North sale proposed 240 acres of clearcutting; 444 acres of aspen shelterwood; 148 acres of balsam fir shelterwood; 108 acres of Paper Birch Clearcutting; 136 acres of pine thinning; 46 acres of pine shelterwood; and 20 acres of hardwood thinning.

Special thanks to the folks of Minnesota Healthy Forests who visited the Winnie North sale with the Forest Service, asked hard questions, and put the spotlight on this ill-conceived timber sale.

On behalf of Wild Alabama and Ned Mudd, WildLaw filed a 60-day notice letter against the U.S. Environmental Protection Agency announcing that we will sue the EPA under the Clean Water Act and the Endangered Species Act for EPA's allowing the State of Alabama to have a totally inadequate water pollution control program. Our goal is to have a court order EPA to 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.

In a Petition previously filed with the EPA, WildLaw and our clients set forth extensive evidence of how ADEM has completely ignored its duties under the CWA and ESA. Alabama's water pollution control program is nowhere close to equivalent to the federal program and it allows the killing of endangered species. EPA now has two months to take over Alabama's CWA program or face legal action to force EPA to make Alabama obey the law.

WildLaw has filed our third lawsuit on behalf of the Utah Environmental Congress over a timber sale on a National Forest in Utah. This case is over the Thousand Lakes Timber Sale on the Fishlake National Forest; it involves logging over 15,390 acres and in three inventoried roadless areas, despite those roadless areas being "protected" by the Clinton Roadless Rule.

The area is habitat for Black Bear, Mountain Lion, Mexican Spotted Owl, Deer, Elk and many other wildlife species that the Forest Service is supposed to monitor for but did not. Thus, one of the issues in this case is the same MIS issue we won on in the South Manti timber sale case (see article above).

The six National Forests in Utah routinely shortcut numerous environmental laws in their quest for more board feet to deliver to industry. Despite losing the first case ever in Utah to stop a timber sale, the Forest Service continues to try to get away with their mismanagement. This situation is very similar to the one we found in Alabama in the early 1990s, when the Forest Service logged irreplaceable natural treasures, all in the name of more subsidized timber to an industry that does not need it. It took a number of successful lawsuits to finally force meaningful change in how Alabama's National Forests were managed, and it appears that we are in for the same type of campaign in Utah. Utah's National Forests truly are national wonders, and the UEC and WildLaw are fully committed to waging the same kind of long-term campaign we did in Alabama to force permanent change in how those Utah Forests are managed.