The WildLaw Letter

A Bi-monthly Report for Members & Friends

November 1998

Early next year, WildLaw will be opening an office in Asheville, North Carolina. Thanks to a special seed grant, we will dramatically expand our environmental protection campaigns in North Carolina. Initially staffed by one attorney, the office will expand to two attorneys by August. Our work in North Carolina has shown us the tremendous need for legal advocacy there for the forests, waterways and rare species of that beautiful state, and our many client organizations there cannot be adequately represented without an office nearby. Interviews for staff are ongoing at this time, and the next newsletter will give full details.

WildLaw has settled a major Clean Water Act lawsuit against the U.S. EPA over Alabama's failure to clean up the rivers and streams in Alabama that do not meet water quality standards. The CWA's mechanism for cleaning up "non-attainment" waters under § 303(d) of the Act is by using TMDLs, total maximum daily loads, which are limits on how much of a pollutant can go into a stream. Every water that does not meet standards is supposed to have a TMDL developed for it so that it will soon meet standards; Alabama never did this on thousands of miles of polluted rivers, streams and coastal waters in the state.

Filing the suit on behalf of Ned Mudd and the Homewood Citizens Association, WildLaw and Birmingham attorney and renown provocateur Bart Slawson forced the EPA to admit to this failure to enforce the CWA and to set a schedule for the development of TMDLs. EPA has been sued all over the country for states' failure to do TMDLs, but this settlement in Alabama is the first case in the nation whereby EPA agreed that aquatic species would be used as a measure of whether a water body was polluted and how much it needed to be cleaned up. Alabama will be the first state to require protection of water quality sufficient to ensure the health and vitality of all fish, snails, mussels and other aquatic species. This requirement will have major impacts on cleaning up Alabama's water and is a major precedent for other states and their TMDL programs. Indeed, EPA has already disapproved Alabama's 1998 303(d) list and is proposing hundreds of additional waters due to the aquatic criteria we got placed into the settlement.

Wild Alabama has sued the Forest Service once again over the indiscriminate divestiture of public lands in the southern portion of the Bankhead National Forest. The Bennett Exchange divests the public of 186 acres of wild lands along the shores of Lewis Smith Lake in the southern Bankhead. Mr. Bennett is contributing mostly 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. As always, the Forest Service refused to allow the public to see the assessments of the lands to be traded so that we cannot know if the public is getting equal value for its lands. Also, Mr. Bennett did not bid on these lands; they are being exchanged to him without any bidding process ever taking place.

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

On behalf of Appalachian Voices, the Southern Appalachian Biodiversity Project, the Western North Carolina Alliance, and the Pisgah Group of the Sierra Club, WildLaw filed an appeal of the Witness Rock Timber Sale in the Pisgah National Forest, North Carolina. The appeal challenges 210 acres of cuts within sight of the Blue Ridge Parkway and near the Falls Branch Trail. The timber cuts will also impact black bear and significant wild trout streams, including Bad Fork. In making its decision, the Forest Service ignored comments from the North Carolina Wildlife Resources Commission asking for an economic analysis, for elimination of cutting above major trout streams, for elimination of sedimentation problems, and for aquatic resources surveys in the streams. The Forest Service also failed to survey adequately for rare plant species, which a researcher on behalf of Appalachian Voices found with little effort. Than Axtell of Appalachian Voices worked up a major portion of this appeal.

In face of an appeal by Wild South and WildLaw, the Supervisor for the National Forests in Mississippi, Karl Siderits, withdrew the Block 14 timber sale in the Homochitto National Forest in the southwest portion of the state. This 3,327-acre sale was right in the middle of the areas involved in a 8,200-acre thinning sale also under a WildLaw appeal. Neither EA considered the impacts from these two large sales together. Soon thereafter, the decision for the First Thinning Sale (the 8,200-acre sale) was also withdrawn in response to our appeal of that massive sale. That sale would have cut more than 40 million board feet.

The National Forests in Mississippi have traditionally been known as the cash cow for the entire Southern Region of the Forest Service, as hundreds of millions of board feet of timber were slashed out of them every year without opposition from those who want natural forests. Until now, that is.

After losing the appeal of the Compartment 117 Timber Sale in the Holly Springs National Forest in northeast Mississippi, WildLaw filed a lawsuit on behalf of Wild South, Heartwood, and the Citizens for the Holly Springs National Forest. The Forest Service admits that they have not made any wildlife monitoring surveys in the area ever or anywhere else in the forest for at least two years. To justify calling stands with 85% hardwoods as "pine" stands, they used "ghost trees," trees that were cut out of the area years ago, in their counts and they refused to count any hardwoods over 5 inches in diameter. In other documents, the Forest Service admits that their management plan and their actions under it do not comply with the law. Thus, we are also asking for all timber sales in all the National Forests in Mississippi be enjoined until a new plan can be done, which could take five or more years.

Our appeal of the South Sandy timber sale in the Oakmulgee District of the Talladega National Forest was successful. In response to our comments and appeal on behalf of Wild Alabama, the Forest Service dropped from their proposal two stands of hardwoods they had planned to convert to pine. They also agreed to establish a planning process and committee (with Wild Alabama as lead partner) to plan for and lay out the building of a major hiking trail and connected trails in the Oakmulgee. The Oakmulgee is the same size as the Bankhead yet it does not have a single hiking trail.

In addition to the trails agreement, the Forest Service also made agreements about their next planned timber sale, Wiggins. They agreed to leave dogwoods and other understory, to not cut large longleaf pines, to include hardwood area enhancement (such as selectively removing offsite loblolly pines from hardwood areas), to use more selective cutting methods, and to sponsor a field trip during the scoping phase of the project to get more public input earlier in the process. They also agreed to expand their consideration of cumulative impacts from their past practices by working with us to map visual hot spots, biota, late successional trees, riparian zones, geological features, historic settings, proposed trails, areas with or proposed for special designations and recreation sites before deciding what and where to cut.

On September 11, 1998, Judge Lacy H. Thornburg in Asheville, North Carolina dismissed Appalachian Voices' lawsuit against a massive "salvage" timber sale that will impact one of the South's best trout streams, Snowbird Creek in the Nantahala National Forest. In a flippant and snide opinion, Judge Thornburg essentially said that the Forest Service can make no mistakes and that citizens were wrong to question the agency's decisions. On every issue, Judge Thornburg accepted whatever the Forest Service said at face value without any analysis or review to see if the agency's assertions were backed up by the record.

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. The excuse of "salvage" is being used to keep this 1.2 million board foot sale out of the District's allowable sale quantity (ASQ). This sale will directly impact one of the nation's finest trout streams, Snowbird Creek, which is one of the last remaining habitats of the Junaluska Salamander and is a proposed wild and scenic river. Judge Thornburg dismissed impacts to the Salamander, despite the Forest Service's admissions that the logging would probably kill some of them and that they had no idea how stable that population is.

Representing Appalachian Voices and the Biodiversity Legal Foundation, WildLaw filed a lawsuit against Bruce Babbitt and the Fish and Wildlife Service for their failure to begin the process to protect the Junaluska Salamander in western North Carolina. The FWS has ignored our petition to begin the listing process for the salamander; the Endangered Species Act requires that the FWS respond to such a petition within 90 days. Since they have violated the law for more than 180 days, the only way to make them obey the law was to sue. Filing the case in Asheville, we hope to make FWS move forward to protect what experts have called the rarest salamander in North America.

Representing Wild Alabama and the Society to Appreciate the Resources of Turkey Creek, WildLaw sued Bruce Babbitt and the Fish and Wildlife Service for their failure to give emergency protection to the Vermilion Darter in Jefferson County, Alabama. The Darter lives in only a four-mile stretch of Turkey Creek and is threatened by the County's planned prison complex and violations from the County's wastewater treatment plant on the creek. Despite uncontradicted scientific testimony, Babbitt refuses to do anything to protect the fish. The suit seeks an order making Babbitt issue an emergency listing to protect the fish.

Representing Wild Alabama and the Alabama Wilderness Alliance, WildLaw filed administrative appeals of two timber sales in the Talladega National Forest. 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 have 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.

WildLaw and its clients Wild Alabama and Appalachian Voices discovered illegal actions by the National Park Service in Little River Canyon National Preserve in northeast Alabama. Home to the east's deepest and longest mountaintop river canyon, Little River Canyon National Preserve is home to a number of rare plant species that occur nowhere else in the world. One of these, the Green Pitcher Plant, was killed and its habitat adversely impacted by the Park Service's road maintenance activities. Knowing that they had damaged the plant and its habitat, the Park Service literally tried to cover up the action with pine straw and pine branches.

We also discovered that the Park Service's dirt roads in the Preserve and their maintenance activities on them are causing sedimentation to run directly into Little River and its tributaries, all without the required permits under the Clean Water Act. Little River has no permitted pollution discharges on it, and thus it has very clean water. Indeed, the Park Service itself publicizes Little River as "virtually pristine/unpolluted water." How ironic that the Park Service is now discovered to be the River's major illegal polluter. WildLaw issued a 60-day notice letter telling the Park Service and Secretary of Interior Bruce Babbitt that we intend to sue them over these ESA and CWA violations.

The Alabama Department of Environmental Management (ADEM) has been using a set of secret rules by which to grant chemical companies permits to discharge air pollution. These stealth regulations are designed to be weaker than EPA standards and to give industry the maximum amount of pollution possible. Yet, ADEM has never adopted these rules through public notice and comment rule making, as is required by Alabama law.

On behalf of Mobile Bay Watch, WildLaw is suing over these secret rules and trying to stop the entire air pollution program in Alabama until ADEM complies with the law. We then intend to seek from the EPA revocation of ADEM's air permitting authority due to the agency's blatant disregard for federal clean air law.

In response to a petition filed by WildLaw and our clients the Biodiversity Legal Foundation and the Alabama Wilderness Alliance, the Fish and Wildlife Service has listed six species of aquatic snails in Alabama as endangered or threatened under the Endangered Species Act. This is the first multiple-species listing package that has been approved by Secretary of Interior Bruce Babbitt in many years, as he has been unwilling to protect species that generate any political controversy and multi-species packages tend to generate lots of it. This one did, but we worked with businesses and local governments to show them that protecting these snails will not have any adverse economic impact. Getting them to realize the importance of protecting these snails is a major first step in building a better and more sensible business climate in a state that has traditionally seen wildlife as nothing but something to kill.

With the end of the year tax planning and gift giving seasons upon us, WildLaw would like to solicit your consideration for a donation. We all hate these pitches from nonprofit groups to give more money, so we did not send our members a separate letter. We don't have a fancy catalog or slick magazine, and we won't offer to send you some trinket in return. You have seen what we have done, and you know that WildLaw's commitment to ever greater environmental protection for Alabama and the South is unwavering. All we humbly ask is that if our actions and deeds have pleased you or are important to you, please send us a check for as much as you feel moved to share. Also please check if your employer has a charitable gifts matching program.

WildLaw files more legal actions in the Southeast than all other non-profit environmental legal groups combined. In fact, our docket is the largest of any non-profit environmental law firm in the nation. Yet, our budget is less than one-half of one percent of the nation's largest non-profit environmental law firm; still, we have handled twice as many cases in 1998 (so far) as they have. In 1998 alone, we filed more legal actions in Alabama than all other groups combined have throughout history. I can say with absolute certainty that WildLaw makes the most of every dollar donated to us and that we have a record of successful advocacy for the wild second to none. Feel free to call for more information: 334/265-6529. WildLaw is a recognized 501(c)(3) organization, and all donations are fully tax deductible. Thank you.

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