Gardner No Title
| Jurisdiction | United States,Federal |
| Citation | Vol. 2002 No. 12 |
| Publication year | 2002 |
December 2002. Gardner No Title
Peter J. Gardner, Esq.
From Florida to Alaska, declared an August, 2002, Los Angeles Times editorial, "the Bush Administration is undercutting laws and reversing regulations [in] the most concerted exploitation of the public's lands, air and water since fundamental protection laws went into effect three decades ago."(Fn1)As former energy and logging industry executives manage the nation's parks and forests, Interior Secretary Gale A. Norton's initiatives to protect the environment "are a swing back toward the exploitation that ravaged the public estate in the 20th century."(Fn2)
As President Bush prepared to ask Congress to relax environmental laws to permit logging in millions of acres of national forest land increasingly prone to devastating wildfires, (Fn3)Allen Mattison of the Sierra Club "warned that Mr. Bush's plan 'might open the door to runaway logging' in areas that are now protected."(Fn4)Indeed, environmental groups generally feared that the Bush forest initiative would "serve as cover for needless logging."(Fn5)
During an August, 2002, visit to a blackened landscape left in the wake of the Biscuit fire, one of the worst fires in Oregon history, President Bush blamed "bad forest policy" for the widespread destruction. (Fn6)In promoting his plan to permit logging to thin underbrush and thus to reduce fuel for forest fires, the president emphasized employment, saying there was "nothing wrong with people being able to earn a living off of effective forest management. There are a lot of people in this part of the state who can't find work."(Fn7)Although he acknowledged that the "hands-off policies that have contributed to this environmental crisis have been well intentioned," he stressed that his twin goals were to prevent forest fires and "to provide jobs."(Fn8)
President Bush's goals were quickly criticized as "more of a smokescreen for the logging industry than a serious attempt to address the problem."(Fn9)His plans to reduce requirements for environmental reviews and to restructure the appeals process to prevent "bureaucratic delays" were viewed as a continuation of his "abysmal" environmental record that included "gutt[ing] regulations that ban road-building and logging in 60 million acres of national forests."(Fn10)The president's plan for reducing Western wildfire risks, it was argued, threatened environmental laws designed to protect forests as well as "the legal rights of citizens who care about them" and put in jeopardy the 1994 Northwest Forest Plan that protects the spotted owl.(Fn11)
The spotted owl? Jobs? Court-stripping proposals? Have we not been here before?
The spotted owl debate raged from the latter 1980s nearly to the end of the 1990s and media attention was intense. During that time, environmentalists focused primarily on the dangers to the old-growth forests of the Pacific Northwest - and especially to the northern spotted owl's habitat - of continued timber industry practices, conducted chiefly on federal forest land. The timber industry focused on economic arguments constructed around the loss of jobs and an assertedly consequent breakdown of the timber community as federal timber lands increasingly were placed off limits to loggers.
Both groups battled in the press to articulate equitable rather than substantive legal arguments. News articles often briefly identified and explained the legal issues at various stages of the spotted owl litigation or legislative or executive action, and occasionally both the timber industry and environmentalists commented on those issues. But most reporting - and by far the more vitriolic quotations - derived not from legal developments, but from themes that most directly affected people.
There are at least two possible explanations for the divergence between what was argued in court and what was presented in the media. First, timber industry and environmental groups may have determined that the war for the public's heart and mind might best be won when issues of direct importance to people were presented in understandable, if often emotional, terms. The loss of a great number of jobs and a proud way of life, or alternatively a loss forever of a species or the majesty of magnificent, ancient forests, could reasonably be expected to captivate an audience more than whether, for example, the Bureau of Land Management consulted to the required extent with other government agencies, or just precisely what Congress intended in the statutory use of the word "harm."
Second, and irrespective of what industry and environmental groups may have intended or wanted, the press itself may have elected to present the human, rather than legal, face of the spotted owl debate. In so doing, the press would presumably have exercised its informed judgment as to what its audience - which, given the scope of the news coverage, would include much of the United States - most wanted to know or cared about.
In either circumstance, skillful use of the media afforded both sides a forum in which to present their cases more forcefully and effectively than may have been possible through the legal system, and marshaling popular sentiment appears to have been an integral part of their legal strategies.
At the end of the 1980s in America's Northwest, a battle loomed "in the land of the angry and the scared, the right and the righteous," a battle "over jobs, money, recreation, scenic beauty, economic freedom and, if you listen to some of the pre-dictions of conservationists, over whether humankind can avert an environmental catastrophe when it sees one coming. In some eyes, it's also a fight about Japanese colonization of the Northwest, and a measure of America's international environmental leadership."(Fn12)The northern spotted owl, considered by environmentalists an indicator species whose health "is a reflection of the health of the old-growth ecosystem where Douglas firs at least 200 years old tower above the forest floor,"(Fn13)became the emblem of a legal battle that pitted "environmentalists determined to protect the old forests against timber companies that prize the ancient trees."(Fn14)
Vic Sher, a "cool-headed Stanford Law School graduate,"(Fn15)represented environmental groups in the spotted owl protection effort as an attorney for the Sierra Club Legal Defense Fund. Sher framed the importance of a 1988 ruling by Judge Thomas S. Zilly that the federal government acted in an "arbitrary and capricious" manner in not listing the owl as endan-gered(Fn16)as "the first case in which a court has invalidated a government decision regarding the listing of an endangered species."(Fn17)He said the case was "unusual-ly strong because scientific experts uniformly agree that the owl's survival is tied to old-growth forests."(Fn18)However, attorney David Dun, representing a sawmill, said, "We don't believe there is adequate data to demonstrate that the spotted owl is endangered."(Fn19)Another attorney, who requested anonymity, said the environmentalists' efforts to protect the spotted owl was a "very clever and creative strategy. . . . But I think it is kind of unfortunate that an important issue like the future of the timber industry is being fought out on false terms."(Fn20)
When a Ninth Circuit appeals court ruled that environmentalists could sue the government to try to stop logging of old-growth fir near spotted owl nests in Western Oregon,(Fn21)industry attorney Mark Rutzick hailed a "significant victory"(Fn22)in that the Bureau of Land Management could resume full timber sales following a previously issued injunction, which the industry had blamed for plant shutdowns and the elimination of one thousand jobs.(Fn23)Sher countered that the industry claims were based on "false and irresponsible" statements.(Fn24)
The San Francisco Chronicle reported that, "like all the great resource battles of the West, the struggle over old growth is a clash of economy and ecology."(Fn25)The Wilderness Society's Patricia Schifferle said, "the Forest Service machinery is like a bulldozer, and it's rolling right over these forests, [which] could be gone in 20 years."(Fn26)Mark Pawlicki of the National Forest Products Association responded that "we're in serious trouble right now . . . because the supply of federal timber is drying up. Mills are closing because of . . . environmentalists. It's a pending disaster."(Fn27)Vic Sher said, "Experts tell us we literally can't afford to lose any more [old-growth forests] and be sure we're not going to have wholesale extinction,"(Fn28)to which Pawlicki responded that, "if the court goes so far as to require [the Forest Service] to list the bird [the spotted owl], half the industry on the West Coast is going to shut down."(Fn29)Sixty-year-old tree cutter Carl Anderson, wondering "whether his breed might not be as endangered as the owl," said, "It's a bunch of bull --. They should all come down." If the environmentalists succeed in locking up the old growth, "guys like me, we'll be out of work."(Fn30)
An industry survey reported that forty-eight regional mills had closed or laid off workers, and that another fourteen thou-sand jobs would be in danger. (Fn31)But Wilderness Society economist Jeffrey T. Olson said, "the Pacific...
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