Court of Last Resort: Dwyer Strikes Again

Who's the most feared environmentalist in the Pacific Northwest? That's easy. A Reagan-appointed federal judge in Seattle named William Dwyer. This says a lot about Dwyer's character, but even more about the spineless character of the current crop of environmentalists in the region.

Time and time again Dwyer has come down hard on the federal government for trampling over environmental laws. On August 2, Dwyer issued his latest rebuke: a blistering ruling that chastises the Clinton administration for not following its own logging plan for Northwest forests. Dwyer, who said the Forest Service and BLM had failed to survey dozens of rare species, issued a temporary injunction putting an immediate halt to nine timber sales and may follow through with a future injunction halting 150 other pending sales.

Dwyer's favorite target is the Forest Service, an agency that seems institutionally incapable of following the National Environmental Policy Act. A string of rulings from Dwyer in the early 1990s rocked the Northwest, when he determined that the fierce pace of Forest Service logging in ancient forests was driving the northern spotted owl, and more than 180 other species that dwell in the deep forests west of the Cascade Range, toward extinction. He handed down an injunction on new timber sales in spotted owl habitat and the old-growth wars were on.

Then along came Bill Clinton and Al Gore , who vowed in a 1992 campaign stop in Portland, to "end the standoff" over the fate of the Northwest forests once and for all. Of course, the standoff had been serving the owl pretty good. What was to come would drive the owl even closer to extinction.

Within days of taking office, the Clinton/Gore team set its sights on getting the injunction lifted and the big logs rolling back to the mills. The scheme was pure Clinton. Convene a staged "town hall" style meeting, put out a pre-fabricated plan, and induce your liberal friends to sign off on it. This shadow play was the April 1993 Forest Summit, a ridiculous display of consensus-mongering that saw enviros play footsie with executives from Weyerhaeuser. The event is best remembered for the Clinton Administration's crass attempt to censor the opening remarks of E. Kimbark McCall, the state historian, who attempted to put the session in its proper context--a hundred years of conscienceless logging by an industry that treats its workers as ruthlessly as it treats salmon streams.

McCall refused to be muzzled. He couldn't understand why the administration wouldn't allow anyone to bring up the indelicate subject of log exports--wasn't that costing the sawmill workers three times as many jobs as would be lost by protecting the owl? McCall's question went unanswered.

The enviros swallowed their tongues and went along with the pantomime. At every turn, they exhibited a willingness to compromise even more. No mention of log exports, east side forests, or of zero cut. The result was a foregone conclusion. At the close of the day, Clinton promised that he would have the Dwyer injunction lifted by the end of the summer.

Then the blackmail started. First, the message was delivered by a man named Will Stelle. Stelle was a hired gun working on "enviro relations" for the administration. He had garnered the trust of a few green lobbyists by stripping off his Oxford shirt one day to reveal an Earth First! t-shirt hidden beneath. Stelle said that if enviros wanted to get most of what they asked for in the new forest plan, they had to offer up something in return. Namely, they needed to go to Judge Dwyer and ask him to release for logging some of the sales he had halted as posing a threat to the owl. Many, including the Wilderness Society, National Wildlife Federation, and the Sierra Club Legal Defense Fund, were ready to throw in the towel at that very moment. But others held out.

Then Clinton rolled out his big gun: Bruce Babbitt, secretary of the interior and former president of the League of Conservation Voters. Babbitt--who only offers carrots to industry--came to the enviros carrying a big stick--he knew exactly how to scare the hell out of his former colleagues: threaten them with "sufficiency language," a law passed by Congress that allows agencies such as the Forest Service and BLM to violate laws like the Endangered Species Act with impunity. Unless they were willing to go along, the Clinton administration would be forced to ask Congress (then controlled by the Dems, remember) to enact a legislative rider that would overturn the injunctions. And maybe something much worse.

The deal was struck with little dissent. The most notable exception was Larry Tuttle, then head of the Oregon Natural Resources Council. Tuttle refused to sign off on the deal and the Sierra Club Legal Defense Fund (desperate to retain its clout with the administration and recoup handsome legal fees) threatened to "fire" ONRC as its clients, so it could go ahead without them. But Tuttle was savagely undercut by ONRC's conservation director, Andy Kerr. To his enormous credit, Tuttle left ONRC shortly after this debacle and has now started up a feisty group in Portland called the Center for Environmental Equity, which has taken on the mining industry, the big ranches, and the energy companies. Since the deal of shame, ONRC--despite being rewarded with lavish handouts from the top foundations--has veered close to bankruptcy, proving that it's tough to keep fooling your members.

Even more strange is that these groups had a good idea what the new Clinton Forest plan was going to look like. It fell short in every area. First, the plan didn't stop the logging of ancient forests. In fact, more than 35% of the remaining spotted owl habitat was put into the free-fire zone called the Matrix, where logging could go forward just like the good old days. But even the remaining 65% of old-growth forest wasn't safe. Although the plan said these lands were put in a category called Late Successional/Old Growth Reserves, these zones were not off-limits to logging. The plan's fine print allowed these lands to be, in Babbitt's unforgettable phrase, cut for their own good. Ecological logging--considered a joke during the Bush era--came into its own with a vengeance during the Clinton era.

When the green groups and their lawyers approached Dwyer with the outlines of this deal, he was skeptical. He harshly questioned the enviros' lawyers. He noted again and again that the Clinton plan was the bare minimum the already minimalist laws would tolerate. Whether this would save the owl from extinction, Dwyer said, he couldn't be sure. But unfortunately the case wasn't about the owl, but about following proper procedure and jumping through all the required hoops NEPA sets out for environmental impact statements. Dwyer had no choice. He had to let the injunction go and he had to approve the new Clinton forest plan--there simply wasn't any opposition to it. However, the judge did issue a warning: if any element of the plan wasn't put into action, its legal standing would crumble and an even more sweeping injunction could be in the offing.

The plan was undermined from the very beginning. First of all, the science behind the plan was makeshift. It had grossly overestimated the number of owls, marbled murrelets and salmon in the region and had downplayed how badly these species would be hurt by the amount of logging scheduled by the plan. Then, the so-called old-growth reserves took a big hit, when thousands of acres were clearcut as a result of the release of the sales formerly protected under the original Dwyer injunction. This was followed by the salvage logging rider, signed into law by Clinton in 1995, which consigned several thousand more acres of old-growth to the chainsaw.

Then the Forest Service got some bad news. Planned timber sales in marbled murrelet habitat in coastal forests were halted by a federal court. Instead of canceling the sales and returning the down payments to the logging companies, the Clinton Administration said that it would reward them with "like volume" on non-murrelet forests. This meant that the companies were given old-growth to cut on forests in the Cascade Range. Much of this was inside old-growth reserves and was prime spotted owl habitat.

By 1998, the evidence was clear. The Clinton plan was driving the owl to extinction must faster than the old cutting plans of the Bush era that Dwyer had swatted down as illegal. The Forest Service's own biologists found that across its range the spotted owl was declining at more than 8% per year since the Clinton plan had been put into effect. In California, the rate was even higher, more than 10% per year. But the most rapid decline was being seen on the Olympic Peninsula, where the owls, isolated by geographical features such as Puget Sound and by millions of acres of corporate land clearcut by Weyerhaeuser, Simpson, Itt-Rayonier, and John Hancock, were plummeting at the alarming rate of 12.3% per year. At that rate, the Olympic Peninsula owl will be extinct in seven years. Maybe less.

The owl is not going it alone. Marbled murrelet populations, doomed by increased cutting on private lands under a clutch of habitat conservation plans blessed by Babbitt, may be in even worse shape, but their population trends are much more difficult to track. Same with the coho salmon and runs of sea-run cutthroat trout. Pacific fisher, pine marten, red tree voles, bull trout, dozens of salamanders, mollusks, and deep forest wildflowers, such as the Candystick plant, aren't far behind.

All of this was quite clear more than a year ago and nobody did a thing. In fact, when a lawsuit was finally filed, by ONRC and 13 other cautious outfits, such as Tim McKay's Northcoast Environmental Center, they didn't cite the damage done to these plants and animals by Clinton's logging plan.

Instead, they retreated to familiar procedural arguments, arguing that the administration had failed to survey for many of these species before green-lighting logging plans. The suit was so timid that it didn't even request an injunction when it was originally filed more than a year ago. But when Dwyer got the chance, he slammed the Clinton Administration despite the sheepishness of the lawsuit. Simply put, Dwyer castigated the Forest Service and BLM for repeatedly violating its own logging plan.

While the big green groups were pursuing their procedural arguments (the surest route to recouping your attorneys' fees), the Native Forest Council, Friends of Breitenbush Cascades, and Chad Hanson were filing suit in Dwyer's court asking for a halt to all logging in the region. They came armed with powerful evidence: the Forest Service's own data on the spotted owl's rapid decline. This is precisely the kind of in-house evidence that Dwyer used to issue his first injunction on the owl back in 1989.

According to Tim Hermach, head of the Eugene-based Native Forest Council, they will soon file a motion to have their case consolidated with the monitoring case, so that Dwyer can use the evidence in their brief to expand his injunction across all federal forest lands in the spotted owl region.

It's about time this courageous judge was put in the same courtroom with courageous plaintiffs.