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Bush Policy Irks Judges in West by Blaine Harden Washington Post, October 6, 2006

Rulings Criticize Agencies for Not Protecting the Environment

SEATTLE, Oct. 5 -- Using language that suggests they are fed up with the Bush administration, federal judges across the West have issued a flurry of rulings in recent weeks, chastising the government for repeated and sometimes willful failure to enforce laws protecting fish, forests, wildlife and clean air.

In decisions in Oregon, California, Montana and Wyoming, judges have criticized the judgment, expertise and, in some cases, integrity of the federal agencies that manage natural resources on public lands.

The rulings come at a time when an emerging bipartisan coalition of western politicians, hunters, anglers and homeowners has joined conservation groups in objecting to the rapid pace and environmental consequences of President Bush's policies for energy extraction on federal land.

Specialists in environmental law cite a noticeable increase in the number of recent court rulings in which federal judges in the West have ruled against the administration, using blunt language that shows impatience and annoyance.

"You are seeing frustration in the federal judiciary," said Dan Rohlf, a law professor at Lewis & Clark Law School, in Portland, Ore. The law school has the nation's oldest environmental law program. "When judges express that frustration on paper, which is not all that often, they are often reflecting what they see as a systematic effort to get around the law."

The most scathing and exasperated of the recent court orders came late last month out of Portland, where U.S. District Judge James A. Redden has presided for six years over a stalled federal effort to prevent endangered salmon from going extinct in the Columbia and Snake rivers.

Federal agencies "have repeatedly and collectively failed to demonstrate a willingness to do what is necessary" under the Endangered Species Act to save fish at risk of extinction, wrote Redden, who was appointed in 1980 by President Jimmy Carter.

Responding to Redden's language and to other recent critical comments by federal judges in the West, Justice Department spokeswoman Cynthia J. Magnuson said: "It is regrettable whenever a court chooses to examine and speculate about the motives of a federal agency rather than applying the applicable laws to the facts of the case."

The agencies that Redden said are refusing to enforce the law include the National Oceanic and Atmospheric Administration, which leads the salmon-recovery program, as well as the Army Corps of Engineers, the Bureau of Reclamation and the Bonneville Power Administration, which markets power from federal dams on the rivers. Bob Lohn, regional head of NOAA Fisheries, declined to comment on Redden's criticism of his agency's work. Through a spokesman, Lohn said that any comment would be inappropriate because of legal disputes pending before Redden and other judges.

In his court last year, Redden said the administration's plans to protect fish had been proposed "more in cynicism than in sincerity." He noted in his order last month that federal agencies now "seem to be more concerned with ensuring" that Idaho irrigators get water for their crops than with mitigating the damage that dams and water diversions do to endangered fish.

Having tossed out two earlier federal plans for running the river system (one was proposed late in the Clinton era), Redden warned that he "will not allow another invalid" plan to remain in place while urgent action is needed to protect salmon. The warning suggests that the judge might halt the operation of federal dams on the Snake River -- dams that Bush has described as vital to the economy of the Northwest.

U.S. District Judge Charles R. Breyer ruled in San Francisco in late August that the "Forest Service's interest in harvesting timber has trampled" environmental laws protecting timberland in and around California's Giant Sequoia National Monument. He was appointed by President Bill Clinton in 1997.

In a much broader ruling, another federal judge in California used scolding language two weeks ago in tossing out a Bush administration plan that allowed governors to decide what national forest land is suited for logging, mining or energy development.

U.S. Magistrate Judge Elizabeth D. Laporte largely reinstated a Clinton-era "roadless rule," which had put nearly a third of the national forests off-limits to development.

Laporte chastised the administration for changing the 2001 roadless rule without regard to consequences for endangered species, and for failure to cite "any new evidence" justifying the junking of land protections that had been years in the making.

Laporte was selected as a magistrate judge in 1998 by other judges in the northern district of California. In Montana last week, U.S. District Judge Donald W. Molloy wrote that the Fish and Wildlife Service had lost touch with science when it declined to investigate whether the North American wolverine is at risk of extinction.

Molloy, appointed by Clinton in 1996, found "a dramatic loss" in the range of wolverines, a decrease in their population and growing threats to the weasel-like scavenger from genetic isolation and human encroachment.

The Fish and Wildlife Service, he ruled, had ignored "substantial scientific information that would lead a reasonable person to conclude" that listing wolverines as endangered or threatened may be warranted. He ordered the agency to look into the matter for a year.

In western Wyoming, the Bureau of Land Management ignored air-quality and wildlife data when it sold energy leases on national forest land in western Wyoming, according to a September ruling by Bruce R. Harris, a deputy chief administrative judge who works for the land appeals board in the Interior Department.

The ruling temporarily halted energy development on 20,000 acres in the Wyoming Range, where hiking outfitters and conservation groups have fought the encroachment of oil and natural gas exploration.

Specifically, Harris wrote that the BLM had not made itself aware of a recent study showing that endangered lynx were living within the leased parcel. He said that "little, if any, attention was given to air quality issues" before granting the lease. In the nearby Pinedale region, extensive gas drilling on BLM land has caused widespread air pollution.

Federal court rulings in much of the West are appealed to the San Francisco-based U.S. Court of Appeals for the 9th Circuit. Like lower courts in the West, it has often been caustically critical of the Bush administration.