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Conservation: Just Follow the Law by Staff The Charleston Gazette, October 31, 2006

SOME Western U.S. judges appear to be tired of federal agencies that fall down on the job of protecting the nation's fish, wildlife, streams and forests.

In some cases, the Bush administration's push for more commercial development on Western federal land threatens to undo the environmental legacy of President Richard Nixon, USA Today reported. Federal judges have found that the federal government ignores federal law. Some cases, just since August, include:

• U.S. Magistrate Elizabeth Laporte in California reinstated a ban on most commercial and development activities in Western roadless areas. They will remain open to hunting, hiking and horseback riding, but not to drilling and logging.

• U.S. District Judge James Singleton found that that the Interior Department failed to consider the impact on wildlife, particularly caribou, in a plan to drill for oil and gas in the Teshekpuk Lake area in northern Alaska.

• U.S. District Judge Dale Kimball ruled that the Bureau of Land Management did not consider an earlier analysis of an area of Utah before planning to sell oil and gas leases. The previous government report, done during the Clinton administration, said the area is pristine and could qualify as a federally protected wilderness area if Congress chose to designate it.

• U.S. District Judge B. Lynn Winmill found that the Bureau of Land Management violated the National Environmental Policy Act, signed by President Nixon in 1970, by limiting public comment and by ignoring evidence related to rules for grazing on federal land. The bureau wanted to allow ranchers more time to correct environmental damage and to give them title to improvements, such as fences. The evidence showed that the rules could harm rangeland.

• U.S. District Judge Charles Breyer said the Forest Service's plan for commercial logging in California's Giant Sequoia National Monument "trampled the applicable environmental laws."

• Deputy Chief Administrative Judge Bruce R. Harris found that the Bureau of Land Management ignored air-quality and wildlife data, particularly about an endangered lynx, before selling energy leases on national forest land in western Wyoming.

• U.S. District Judge Donald Molloy found that the Fish and Wildlife Service had ignored "substantial scientific information that would lead a reasonable person to conclude" that wolverines may be endangered or threatened. He ordered the agency to look into the matter for a year.

The examples above show that the pattern of behavior - of ignoring inconvenient facts - occurs in land management also.

The The Charleston Gazette noted that in their rulings, judges are using blunt language expressing annoyance with executive branch offices that ignore the nation's laws.

Federal agencies "have repeatedly and collectively failed to demonstrate a willingness to do what is necessary" under the Endangered Species Act, wrote U.S. District Judge James A. Redden in Portland in still another case.

That one involves a stalled federal effort to prevent salmon from becoming extinct in the Columbia and Snake rivers. The judge specifically criticized the National Oceanic and Atmospheric Administration, the Bureau of Reclamation, the Bonneville Power Administration and the Army Corps of Engineers.

The Corps is involved in two more federal cases in West Virginia - both recent challenges to mountaintop removal coal mining. In one, U.S. District Judge Joseph R. Goodwin is considering whether to block the Corps from authorizing new valley fills through a streamlined permitting process under the Clean Water Act.

In the other, the Ohio Valley Environmental Coalition argues that the Corps must do lengthy environmental-impact statements on each of 12 streams that would be buried if Massey Energy is given four permits for different mountaintop removal projects. Such studies are required by federal law "for every major federal action significantly affecting the quality of the human environment." The Corps has replied that it believes the proposed valley fills "won't cause significant adverse effects on human health and the environment."

The executive branch, headed by the president, is required by the Constitution to carry out the nation's laws. This administration simply ignores parts of laws it doesn't like and waits for someone to challenge them. Fortunately, America's 200-year-old system of checks and balances is alive and well, at least among Western judges who insist that the executive branch follow the people's laws.