2002 PUBLIC INTEREST
ENVIRONMENTAL LAW CONFERENCE


Can Endangered Species Survive Bush?

Thousands of Greens muster
at UO conference to
defend the Earth.

by Alan Pittman

As the dark lord gathered the forces of evil in Mordor and prepared a final assault on the Earth, a group of elves, hobbits, dwarves and good-natured humans gathered in Rivendell to discuss how to combat the forces of evil that threatened the land.

That's fantasy in Lord of the Rings, but the thousands of environmentalists who gathered in the river city last week for the Public Interest Environmental Law Conference (PIELC) at the UO may feel similarly embattled.

Washington under the Bush administration can leave an environmental lobbyist feeling threatened and endangered.

"It's a harsh and brutal place," says Brock Evans, director of the Endangered Species Coalition. "It's a land of anger and confrontations and jangling telephones," he says. "The things we care about and love are under ferocious assault"

In past years attendees at the UO conference, one of the largest such gatherings in the world, have focused on the Clinton administration's environmental failures such as signing appropriations riders for salvage logging.

But with Bush, environmental threats have grown more dangerous. "It's true Clinton was no friend of ours on endangered species, but at least he would threaten to veto," Evans says. In a recent battle, environmentalists barely beat back a bill to gut the endangered species protections in the Klamath basin. Evans says their Senate allies warned, "we can't go through this again, we're getting creamed."

"The buzz" in D.C., Evans says, is "we need to fix the Endangered Species Act, the science is bad."

He sees a major assault on one of the nation's premier environmental laws coming. "It's like a fog and you hear the tank engines on the other side."

Already, the first shots have been fired. Bush ordered federal land managers not to interfere with oil and gas drilling, sending a message to federal bureaucrats to step back from environmental protection. Evans asks, "Who's going to risk their job and their career?"

At the same time, the Forest Service has moved to overhaul how it surveys for endangered species, the Department of Interior has a "working group" looking for ways to weaken the ESA in the name of "efficiency" and Congress is working on a bill that would move approval of federal land oil drilling to the Energy Department, according to Evans. "It's all going on at once."

"If the American people know this, then we have a better shot," Evans says. He points to a poll showing 51 percent support for strengthening the ESA, but only 18 percent support for weakening it.

But Evans says the Bush administration is trying not to be blatantly anti-environment. "They aren't dumb, they aren't [Reagan's] James Watt. They know how to say these things."

One way for Bush to weaken environmental laws without taking the blame is to not defend against industry lawsuits challenging species protections. Evans calls recent lawsuit settlements "sweetheart deals" between anti-environmental groups and the Bush administration.

This week the Bush administration offered to settle a lawsuit lead by the National Association of Home Builders by canceling habitat protections for 19 runs of endangered salmon and steelhead. Patti Goldman, a staff attorney with Earthjustice and one of the nation's leading ESA litigators, asked the D.C. Circuit Court to throw out the settlement because the court has not found that the habitat protections are illegal.

Goldman says environmental groups made a "big mistake" when they did not file such intervenor petitions before a September ruling by federal Judge Mike Hogan in Eugene throwing out listings for many salmon and steelhead species because of a failure to include hatchery fish in counts of endangered wild species.

Because of the ruling, "There's a lot of logging going on of sales we previously stopped," Goldman says. She's now fighting the Bush administration to get intervenor status with the court in order to appeal the ruling which the administration is now trying to apply as a precedent for other endangered species listings.

Part of the problem is that, in cases under the Clinton administration, environmentalists successfully argued that industry groups shouldn't be given intervenor status in proposed settlements, according to Goldman. Now, those legal precedents work against environmentalists.

Goldman says industry groups are waging other assaults on the Endangered Species Act including making a "Regulatory Flexibility Act," passed when Newt Gingrich lead Congressional Republicans, into a kind of "anti-National Environmental Policy Act," requiring economic impact statements for government actions. Developers are also trying to use the Constitution's equal protection clause to argue that they shouldn't be regulated to protect fish as long as some commercial fishing is still going on.

Goldman says she has to continue the legal fight to protect fish even after they're listed as endangered. For example, she says the Army Corps of Engineers and EPA recently failed to consider endangered fish when regulating water withdrawals and pesticide use. "You get the listing and then maybe nothing happens."

Jacob Smith, director of the Center for Native Ecosystems, says he's working to make sure the Forest Service considers endangered species in its logging plans under the National Forest Management Act (NFMA).

The Bush administration is working on an overhaul of NFMA administrative rules designed to protect species' "viability" that's due out soon and will likely dramatically change species protections, Smith says.

Instead of going out to count animals to see if a clearcut will endanger species, the Forest Service prefers to use computer models, Smith says. "That's patently absurd, their models typically stink," he says. For example, the models predict that any suitable habitat will be completely occupied by rare species, according to Smith.

Court rulings on whether to model or count species are "mixed," with the trend toward courts requiring actual counting, Smith says. But that may just prompt the Forest Service to change its lists of which species to count, he says.

But Smith says the NFMA viability protections can be important to saving habitat. "It's a big heavy sword that's very difficult to wield, but if you wield it effectively, it's a very powerful weapon."

But Ted Zukoski, director of the Land and Water Fund of the Rockies, says the new Bush regulations will likely strip that weapon away from environmentalists. "As bad as these regulations were, you ain't seen nothing yet," he says. "There will be no hard standards to protect wildlife."

Kieran Suckling, director of the Center for Biological Diversity, says environmentalists need to go on the offensive. He says groups should petition for mass listings of endangered species to show, "We've got a biodiversity collapse happening in North America."

When Clinton signed riders exempting logging from the Endangered Species Act, it got relatively little public and media attention. But Bush "got hammered" in the media when he took similar anti-environmental steps. "He's very vulnerable on ESA issues," Suckling says. "We need to go forward with an aggressive campaign."

Evans says endangered species can survive the Bush administration. "I've seen a lot of things that look like hopeless lost causes become strong overwhelming victories."

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Return of the Wolf
Politics and recovery collide.

by Orna Izakson

In the world before humans, according to Nez Perce beliefs, all animals had their own voice. The two-leggeds were created last. When they received a voice, the animals lost theirs, therefore humans have to speak on behalf of the other animals' existence.

When Europeans came, they demonized what was on the land before them -- the Nez Perce, the grizzly and the gray wolf, said Aaron Miles of the Nez Perce tribe.

As many as 400,000 wolves once howled in North America. Between 1910 and 1930, the new immigrants made a concerted and nearly successful effort to wipe them out. Only about 3,500 wolves still run on this continent, said Nancy Weiss of Defenders of Wildlife, many of them reintroduced as part of emergency programs designed to stave off extinction.

As the wolves and bears were killed, Miles explained, the Native American lost the animals they needed for their ceremonies. It was, he said, like Catholics losing the bread and wine they need for communion.

In 1973, Congress passed the landmark Endangered Species Act, which articulated the nation's commitment to preventing extinction and restoring both species and "the ecosystems on which they depend." One year later, wolves were among the first to gain the highest level of protection as endangered species.

And now, with help, the wolves are coming back to North America and to Oregon, in spite of great controversy, resistance and fear.

The Southwest's Mexican gray wolf, or lobo, fell to seven living animals in the 1980s, said Michael Robinson of the Tucson-based Center for Biological Diversity. Those seven -- only one of which was female -- seeded a captive breeding program that in the late 1990s led to reintroduction of the lobo in the forests of New Mexico and Arizona.

In the 1990s, Canadian gray wolves were released in Yellowstone National Park in Wyoming, and in a broad wilderness in central Idaho. The much vaunted effort has been highly successful, not only at restoring wolf numbers but at correcting imbalances among various species there.

The wolves from the Rockies now are finding their way to Oregon. In the past few years, three wolves have been definitively identified, mostly in the northeastern part of the state. Two were found dead. One had a collar identifying her as a reintroduced Idaho wolf, and the U.S. Fish and Wildlife Service returned her to Idaho, although agency officials say they won't do that again.

USFWS also has received word of 40 wolf sightings in Oregon. Although those have not been confirmed, Weiss said that as many as 25 percent could be accurate.

But the top predator remains controversial, principally among rural ranchers. Sharon Beck of the Oregon Cattlemen's Association said that wolves don't need habitat, they need a prey base, which could be cattle as easily as elk.

"This is just a no brainer for livestock people," she said in a phone interview. The wolves were extirpated because "you can't raise livestock and have wolves around, it can't be done -- And that's the way we want to keep it: Zero tolerance for wolves in Oregon."

The Association of Oregon Counties wrote an official letter echoing Beck's position in 1999. But wolves -- which have not harmed cattle in Montana, Idaho or Wyoming -- weren't on the mailing list.

What happens next is a political fight.

Getting Canadian wolves into the northern Rockies involved a compromise that stripped those animals of the usual protections for endangered species. Labeled an "experimental, non-essential" population, they are more vulnerable to removal and killing, especially if they kill cattle. But in the wilderness of lush Yellowstone National Park they have vast space to roam where cows don't even enter the picture.

The going is tougher for the Mexican gray wolves, which through politics saw still less protection. Lobos can be killed if they wander outside of their recovery area in Arizona and New Mexico. They cannot be reintroduced directly from captivity into the best of their habitat in New Mexico wilderness. And only a small portion of their recovery area is cow free -- increasing the risk that they'll learn to eat cows, a potentially fatal offense under their "experimental" status.

In Oregon, however, the full force of the Endangered Species Act remains in effect even though there are no wolves here yet. That means that a wolf with lessened protection in Idaho will find a haven in Oregon; as soon as it crosses the Snake River, that wolf sheds its "experimental" status and becomes a full-fledged endangered species.

USFWS has proposed removing protections for wolves nationally, even in places where the predators have not been recovered. Nearly all the public comments on the agency's proposal came from people who wanted more wolves in more places, Weiss said.

The agency wants to reduce protections for wolves in most of the West, Weiss said, keeping them on the list as a threatened rather than endangered species. At the same time, the agency wouldn't require that wolves return everywhere in their range in numbers that would become self sustaining. Weiss and Robinson view that as a way to kill wolves in Oregon if there are enough to meet the agency's goals in the northern Rockies.

Defenders of Wildlife has petitioned USFWS to maintain protections for wolves on 16 million acres of federal land in the Cascades from northern California to the Willamette National Forest near Eugene, even though no wolves are known to be there yet. Under the proposal, that area would remain a refuge for any wolves that made it from the Rockies, a place where they would enjoy full protection as endangered species until the packs there become self sustaining.

Miles says tribal participation in recovery discussions is "like being able to rearrange our furniture the way it was." Nevertheless, he said, the process is so dominated by farming and ranching that the tribe's words are barely heard.

"When are they going to let them live," he asked, "and live with the Indian people?"

Robinson says wolves remind the public that the law requires not just restoring animals, but protecting the ecosystems on which those animals depend.

"Wolves are coming to Oregon," he said, "compelling us to make the choice between tightly controlling and even abusing the landscape on the one hand and allowing nature to run wild and free. That may be the gift wolves can give back to us. And I think the people of Oregon are ready to make the mature choice. The question is whether the politicians will."

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Prevailing Gender
by Judy Yablonski

Patriarchy in the environmental movement received an unexpected spotlight this year at the PIELC after a group of concerned women prepared and distributed a handout at certain EMU Ballroom keynote addresses outlining their concerns on the subject. Their handout contains statistics implicating patriarchy at the conference itself and characterizes this as an example of the underlying patriarchy in the movement as a whole.

From the podium of the EMU Ballroom, the conference's publicity and outreach coordinator, Jodee Scott, recognized the drastically unequal ratio of men to women represented as speakers at the conference as "upsetting." The handout makes reference to the statistics and asks, "is this how we shift the dominant paradigm?" It further states, "We believe that hierarchy and patriarchy -- systems of power that result in environmental destruction -- are widespread in the environmental movement and thus at this conference. In order to create a sustainable future, we must model a social system of full inclusion, consent, and respect."

2002 PIELC:

309 male panelists,
132 female panelists

11 male keynoters,
4 female keynoters
The interest in taking action to address patriarchy jelled at the discussion/panel, "Challenging Patriarchy in the Environmental Movement," early Friday morning. The discussion, attended by approximately 50 women and 10 men, was facilitated by Brenna Bell, staff attorney for the Klamath-Siskiyou Wildlands Center, and Kim Marks, organizer for Forest Ethics. The purpose of the panel was to address the spectra of patriarchy in the environmental movement on both the personal and systemic level. They hoped that activists could share stories, provide support, and brainstorm methods of actively challenging patriarchy on all fronts. The panel was a catalyst for a representative portion of the panel to take action throughout the conference.

Bell requested that the conference organizers allow her five minutes at the podium of the EMU Ballroom Friday night to highlight women's concerns about patriarchy. The scheduled keynoters ran overtime, however, and Bell was not able to speak. As an alternative, representatives from the patriarchy panel met with conference organizers on Saturday afternoon to discuss their concerns. The organizers declined permission for Bell to speak on Saturday night because, as conference Co-Director Rachel Warner explains, they did not want to open the floodgates to future last-minute requests from conference attendees to speak at the keynote address. At least one of the women, whose identity is unknown, threatened to storm the stage at the keynote address that night if they were not allowed an opportunity to speak. The threat never materialized, but the women took action by handing out a fact sheet on patriarchy to attendees of the keynote address.

Scott responded to the concerns of patriarchy from the podium on Saturday night. Scott stated that Land Air Water (LAW), the student-run group that organizes the conference, strives to have equal representation of men and women at the conference and that the conference is about "coming together."

Both the handout and the threat to storm the stage offended Warner. She agrees that patriarchy is a problem in the environmental movement, but says the flier is very misleading in that it puts blame on the conference organizers. She attributes the disproportion partly to the fact that several women invitees declined to attend. Furthermore, she reasons that sometimes the best speakers are chosen irregardless of gender, so some imbalance of the ideal 50-50 ratio is bound to occur.

Former LAW Co-Director Jeff Kuyper agrees that the organizers could put in more effort to equalize the gender ratios. "I think having a diverse panel makes the panel more interesting than having a panel with four white males, even if those four white males happen to be the top experts on the subject," says Kuyper. He points out, however, that it is not always the students who create the make-up of the panels. Sometimes, they are put together by attorneys or activists and are merely set up administratively by a student. "The policy now is that we encourage as much diversity as possible -- that includes gender, race, national origin, and different professional backgrounds," he says. "It is a valid concern and as a student-run conference, we are always open to suggestions that would improve the conference and make us more representative of the diversity that is out there."

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Panelists discuss state encroachments on civil rights justified by the "war on terror."

Civil Disobedience
It's easy to be labeled a terrorist these days.

by Orna Izakson

If you're thinking of opposing the U.S. government, legally or otherwise, the stakes have gotten higher and you'd better think carefully before you act.

"We're living in a police state now," explained Eugene attorney Lauren Regan, "and we have to act accordingly -- The playing field has changed."

Although the Constitution protects freedom of speech -- including the right to protest -- Attorney General John Ashcroft's ascendancy and federal anti-terrorism legislation in the wake of Sept. 11 have changed the rules of engagement, Regan said.

"I don't really think we have any Constitutional rights as a practical matter, except to shop (and) watch TV," said San Francisco attorney Ben Rosenfeld.

The limits on political expression "have been creeping along" for a long time, he said. But the so-called Patriot Act passed in the wake of Sept. 11 was "a bold leap forward." Most of its provisions are flagrantly unconstitutional, he said, but no court has yet addressed the matter.

"The freaks who are running the country today -- they're stupid and they're evil and they're in charge," he said. "And they're in rapture right now."

The Patriot Act gives law enforcement unprecedented investigational latitude. Regan explained that while the act is touted as a way to fight terrorism, many of its provisions also can be used in routine criminal investigations.

The best-known part of the act applies to detention of non-citizens based on mere suspicion. But much of it applies to citizens, too. For instance, Regan said the act allows greater telephone and Internet surveillance with minimal judicial supervision, and allows secret searches in terrorist and general criminal investigations. This means law enforcement officials can enter a house without a warrant and without notifying the person under investigation. Similarly, the FBI has gained broad access to sensitive medical, financial, mental health and educational records of individuals without a court order.

"Let's not be naïve," Regan said, pointing out that such intrusions occurred before Ashcroft and before Sept. 11. But until now, she said, evidence obtained through unwarrented searches or wiretaps couldn't be used in court.

The act also gives Ashcroft and Secretary of State Colin Powell the power to label any domestic group a terrorist organization, and to block non-citizen members of that group from entering the country. Destruction of public or property for political purposes is terrorism.

Even seemingly minor actions that are staples in the activist repertoire -- hanging a banner, for instance, or chalking a sidewalk -- may now be considered property destruction and therefore terrorist activities, Regan and Rosenfeld said. The definition also could apply to blockades.

"You can no longer expect to lock down and get cited and released," Regan said.

More and more, prosecutors are working to get felony convictions and long probation periods for activists, she said. Probation, she explained, "is a big curtailment of your rights." Someone on probation can be kept away from political activities, forced into drug treatment or incarcerated.

Rosenfeld said the standard cautions to activists apply even more in these changed times.

Choose your battles carefully, he said, bearing in mind that any protest can devolve into a battle with the police. Remember that "cops lie," he said, to avoid hazing from other officers. He warned people against physically resisting law enforcement. And he urged people to know their rights.

An "absolutely unswerving rule," he said, should be to never speak to law enforcement officers.

Regan said that many experienced activists know this rule, but often forget it under stress. "Never ever, ever consent (to a search) and never answer a question without the advice of a lawyer," she said.

The attorneys advised sending officers away politely, in which case they would be unlikely to return. Rosenfeld and Regan suggested saying "my attorney has advised me not to make any statements to you," or even citing "the advice of an attorney I heard speak once."

Earth First! activist Darryl Cherney said that if people speak with officers and the officers take notes, those notes can be changed in ways that have nothing to do with what was actually discussed. Any subsequent cour
dispute would pit the activist's word against the officer's.

Portland forest activist Kim Marks said talking to law enforcement harms the greater activist community. Working to exonerate oneself can put more pressure on others.

But the panelists said activism remains critical.

"We're living in a police state," Marks said, "but we can't let that stop us."

Spindle, a tree sitter working to stop the Clark timber sale near Fall Creek, said "now in our times we need more warriors than ever -- warriors as in one who is brave."

Randy Shadowalker of the activist cable-access television show 'Cascadia Alive!' said the powers that be in the U.S. "just want us to shut up, go back home and watch 'Who Wants to be a Millionaire.'" Doing that, however, tells the rest of the world that Americans consent to the actions of their government in Afghanistan, Colombia, Argentina, Israel and Palestine, where people are engaged "in a whole life and death struggle."

He compared American who don't act to German citizens who did nothing in the 1930s thinking it was safer to go along with the Nazi machine. In the '40s they found out they were wrong.

Better to risk a "bullshit arrest now," he said, "than to find ourselves on the losing end of a World War III battle."


For more information, see www.nlg.org and www.aclu.org/safeandfree

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Ignoring Reality
by Judy Yablonski

Companies such as The Merry Hempsters will not be quite so merry if the federal government has its way in restricting the sale of consumable hemp-based products. The Eugene company, which produces hemp-oil based, all-natural lip balms and healing products, could very well shut down if a Drug Enforcement Administration regulation goes into effect. In October 2001, the DEA issued a rule which declared that that all industrial hemp products are no longer exempt from the definition of marijuana as defined in the Controlled Substance Act (CSA).

The proposed rule prohibits the sale of hemp food products, said David Frankel, an attorney challenging the regulation. Further, he said, the DEA could expand the measure to include hemp-based lip balm, since lip balm is theoretically an ingestible product.

Frankel argues that the rule is illegal because it ignores the reality that industrial hemp products contain only trace amounts of naturally occurring THC -- about .0001 percent -- and that they therefore have absolutely none of marijuana's psychoactive effects.

Although the rule was due to go into effect March 18, the Merry Hempsters' logo will continue to show its smiling face on the shelves of stores across the country. Last week, the 9th Circuit Court of Appeals blocked enforcement of the rule until the court determines its legality. Lawyers and activists challenging the DEA interpretive rule are therefore confident that the case will ultimately be decided in their favor.

Frankel calls the rule "a form of economic terrorism" against the hemp industry. Many small hemp producers have lost income as a result of the rule, even though its legality has yet to be determined. While some stores, such as Sundance in Eugene, decided to wait to take their edible hemp off the shelves, others feared the consequences of waiting. The national chain, Whole Foods, chose caution and removed all of its hemp-based food and body products from its shelves on Feb. 5.

As a result, the Merry Hempsters, a business centered completely on hemp products, experienced a huge economic setback. Owner Gerry Shapiro is relieved that Whole Foods, responding to the court's action, will restock its shelves with his hemp-based products later this week. Shapiro remains optimistic that the court will send a strong message to the DEA that their battle on hemp is futile. He says, "I do not believe the DEA has legal authority, credible science, common sense, or justice on their side."

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Nader Speaks
by Alan Pittman

Conference headliner Ralph Nader warned of growing divisions between grassroots greens and some national environmental groups that have focused on compromising with industry. "There's going to be severe battles between environmental groups," he predicted.

He described how industry used the endorsement of the National Resources Defense Council in California to pass a disastrous electricity deregulation law. Nader said other citizen groups held back from attacking NRDC then, but "We are not going to be forbearing anymore. There's too much at stake."

International trade agreements like NAFTA and GATT are "ecocidal" treaties that sacrifice world labor and environmental protections to promote trade. The trade just isn't worth it, he said. "The idea of importing ice cream from Sweden, biscuits from England and water from France is an absurdity."

Nader lamented that environmentalists had "lost" the fight over fuel efficiency standards by letting car makers successfully use the bogus argument that smaller cars are unsafe. "The only time I see Detroit worry anything about safety is when somebody tells them they have to do something about fuel efficiency."

He said Americans are "growing up corporate," watching ads that never show stressed car drivers stuck in traffic being passed by light rail commuters chatting and relaxing in sleek mass transit.

Nader said he saw little difference between Al Gore and George Bush when he ran against them for president. Gore and Bush had nearly equally bad policies on fuel efficiency, genetics, NAFTA, nuclear power and pesticides, he said. "One is a D+, one is a D-, they both flunk."

The presidential campaign was a farce that dodged real debate and issues, according to Nader. "Gore spoke to the American people as if they didn't understand the English language and Bush spoke to the American people as if he didn't understand the English language."

Nader warned that environmentalists shouldn't let the Democrats take them for granted. "When you get taken for granted, you know what happens? You get taken.

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