Marty Durlin

Online Editor

A dozen years, 10 circuit judges, 3,504 entries on the case’s docket…and still, Elouise Cobell’s suit claiming mismanagement of Indian lands by the federal government remains unresolved.

On January 31, U.S. District Judge James Robertson released a 165-page decision stating that although “completion of the required accounting is an impossible task” for the Interior Department, he would schedule a hearing in February to discuss ways to solve the problem. He said a remedy must be found for “the department’s unrepaired, and irreparable, breach of its fiduciary duty over the last century.”

“We’ve argued for over 10 years that the government is unable to fulfill its duty to render an adequate historical accounting, much less redress the historical wrongs heaped upon the individual Indian trust beneficiaries,” Cobell said.

The government offered a $7 billion settlement in March 2007, but Cobell and other plaintiffs refused, saying liability could exceed $100 billion. The Interior Department estimates that it has spent $127 million on its attempts to provide accounting.

A previous judge, Royce Lamberth, was removed from the case after writing in a decision that it “is…the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago.” The U.S. Court of Appeals for the District of Columbia said Lamberth had lost his objectivity.

According to AP, Robertson said the case has become so complex that “no two lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.”

Marty Durlin

Online Editor

Former U.S. Forest Service Chief Michael Dombeck on January 22 celebrated ten years of the Roadless Area Conservation Rule, which protects nearly 60 million acres of wilderness but still faces a variety of legal challenges.

Dombeck, architect of the roadless policy, is now a professor of global conservation at the University of Wisconsin. He said the rule has played a key role in protecting wildlife habitat, preserving clean drinking water, providing recreational opportunities and providing a defense against global warming. He said the policy has kept nearly all the land from energy development, mining, logging and roadbuilding.

In 1998, Dombeck proposed a temporary moratorium on road construction in inventoried roadless areas across the National Forest System. The Forest Service adopted an 18-month moratorium in February of the next year, during which 1.7 million public comments were filed, most favoring protection of roadless areas. The Rule was officially issued by the U.S.F.S. in January of 2001. The Bush Adminsitration repealed the Rule in 2005, but a federal district court ordered its reinstatement in September 2006 in response to a suit filed by Earthjustice on behalf of 20 conservation groups.

Environmentalists are now calling on Congress to enact the Roadless Area Conservation Act of 2007, to codify the Roadless Area Conservation Rule. Bills have been introduced by Sen. Maria Cantwell (D-WA) and Rep. Jay Inslee (D-WA).

Dombeck was part of a panel that met to assess the effect of the Rule. An audio recording of the panel (a teleconference) is available from The Wilderness Society, along with more information.

For background on the Roadless Rule, see this article and others in HCN’s archives.

Declining sage grouse populations in the West may get a new chance to rebound thanks to federal judge B. Lynn Winmill, who yesterday threw out a 2005 Bush administration decision not to list the quirky bird as threatened or endangered.

The greater sage grouse was among the species considered for protection during the tenure of Julie MacDonald, the meddlesome former deputy assistant secretary of wildlife, fish, and parks, who resigned this year after the Interior Department’s inspector general concluded that she had broken federal rules and improperly handled the decision.

Judge Winmill called the original decision “tainted,” and noted that MacDonald prevented scientists who supported listing the grouse from having a say in the process. He sent the matter back to the U.S. Fish and Wildlife Service for reconsideration. Let’s hope they refrain from the “intimidation tactics” used by MacDonald and look at the science this time.

The Idaho Statesman says that a decision to protect the bird as endangered could be comparable to the federal listing of the spotted owl in the Pacific Northwest. But unlike the spotted owl, which was mainly pitted against the timber industry in the battle for habitat, the sage grouse faces a myriad of threats from oil and gas development to sprawl to West Nile Virus.

Jonathan Thompson

Editor in Chief

Beware: If you click on this link to the Phoenix New Times, your personal information could be subpoenaed. Seriously.

Arizona has a reputation for wacky politics. But this one is a doozy: New Times editors, executives and reporters (including High Country News contributing editor John Dougherty) have been subpoenaed by a grand jury for, get this, publishing the address of Sheriff Joe Arpaio on the Web. Also sought in the subpoena is information about folks who have visited the New Times website. And then, because New Times allegedly revealed grand jury secrets, two of the paper’s executives were tossed in the can.

It’s a wild story that reveals the totally bizarre nature of Arizona politics, involves “America’s Toughest Sheriff” (known for his tent camps and making prisoners wear pink underwear) and would be pretty damned funny if it were made into a movie starring Nicolas Cage and Holly Hunter.
You can read about it in the New York Times. But you really should read the New Times account.

UPDATE, 10/22: Following a barrage of public criticism, within Arizona and across the country, the case against New Times was dropped on Oct. 20.

Ray Ring

Senior Editor

It’s more evidence that our highest court has been transformed: Justice John Paul Stevens now leads the court’s “liberal” wing, an angry minority.

Stevens was appointed 32 years ago by Republican President Gerald Ford. “I’m pretty darn conservative,” he tells writer Jeffrey Rosen, in a long profile in The New York Times Sunday magazine.

Rosen reports:

Stevens … is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head.

… He said (he) only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by Richard Nixon in 1971 — “has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”

With George W. Bush’s justices — John Roberts and Samuel Alito — tightening the far-right grip, Stevens finds himself in the minority in many close, 5-4 rulings. He either writes, or arranges for others to write, dissenting opinions that are increasingly “fierce” and “scathing” of the majority, Rosen reports.

Rosen’s insightful look inside the Supreme Court — and into the national politics — is here. It’s also a look into our future. No matter how much ground the Democrats retake in Congress and the White House, we’ll probably be living under the current 5-4 majority on the Supreme Court for many years to come.

Ray Ring

Senior Editor

Federal judge Don Molloy — whom I’ve called “one of the greenest judges in the West” — is at it again.

Now Molloy wants to pry loose the Bush administration’s chokehold on the U.S. Forest Service.

The basics: Enviros noticed the hideous orange fire retardant dropped on wildfires got into streams and killed 20,000 fish. So they asked the Forest Service to analyze the impacts of fire retardant on millions of acres. The Forest Service balked, apparently under the influence of Bush appointee Mark Rey, who happens to be a former timber lobbyist.

So the enviros sued, and as AP reporter Jeff Barnard reports:

… In 2005, (Judge Molloy) ruled that the Forest Service violated the Endangered Species Act and the National Environmental Policy Act when it failed to go through a public process to analyze the potential environmental harm of using ammonium phosphate, a fertilizer that kills fish, as the primary ingredient in fire retardant …

In February 2006, the judge gave the Forest Service until Aug. 8 this year to comply …

The Forest Service blew off that order. It waited until the final day to file a request for an extension. The judge scoffed at that request, and in a new order last Friday, he threatened to charge Rey with contempt of court:

… (Judge Molloy) ordered Rey to appear in his court Oct. 15 unless the Forest Service completes the analysis before that time — an outcome (the judge) deemed unlikely.

“It has been six years since Forest Service staff completed a ‘retardant EA’ — only to have higher-up officials embargo it,” (the judge) wrote … “The time I am giving is likely to prove insufficient if: 1) the agency is simply unwilling to follow the law; or, 2) it is prevented from following the law by its political masters …”

… If found in contempt, Rey … could go to jail until the Forest Service complies with the court order …

The AP story, pretty good but misspelling the judge’s name, is here. If the website for the enviros — Forest Service Employees for Environmental Ethics — works properly, it’s here, and it’s posted the judge’s new order here and more background in an earlier order, here.

In a High Country News brief in 2003, I summed up the risk:

One fish kill stretched five miles down Washington’s Omak Creek, and wiped out more than 10,000 trout and steelhead. Another fish kill hit five miles of Colorado’s Mancos River. Others hit several Oregon streams. The cause?

Fire retardants dropped by airplanes, as federal agencies battled wildfires during the past three years.

The plume of chemicals reaches streams in “less than one-tenth of 1 percent of all the retardant drops,” estimates Alice Forbes, at the National Interagency Fire Center in Boise, Idaho.

But with 15 to 18 million gallons dropped mostly by federal agencies in an average year, and as much as 44 million gallons dropped in a bad fire year, even the small percentage ending up in streams is too much, says Andy Stahl of Forest Service Employees for Environmental Ethics.

And go here if you’d like to read my brief profiles of Molloy and some other key Western judges, part of a 2004 package on the politics of the federal court system.

Ray Ring

Senior Editor

The LA Times has the best analysis of the Supreme Court term that just ended. The Times headline warns:

High court has entered a new era

President George W. Bush’s appointments to the court — John Roberts and Sam Alito — as the Times says, have:

… moved the law to the right on abortion, religion, campaign funding and racial diversity.

And the rightward swing will likely last for many years. For the analysis, click here.

Meanwhile, the LA Times also has the best take on one of the high court’s Western rulings.

The basics on that: Wyoming rancher Frank Robbins sought to ruin a few federal Bureau of Land Management staffers, claiming they were racketeers conspiring to apply grazing regulations unfairly. If Robbins could use the federal anti-racketeering law, he could’ve sought huge monetary damages from the BLM folks. That would’ve brought chaos in the West, making all staffers in the BLM and other agencies — Forest Service, National Park Service, Fish and Wildlife Service etc. — vulnerable to anti-racketeering lawsuits.

Even stacked by Bush, the Supreme Court rejected Robbins’ racketeering claim, by a slam-dunk margin. For the Times’ analysis of that ruling, click here.

In the Self-Interest Department: Are the Supreme Court justices afraid they would also be hit with anti-racketeering suits? If all federal employees could be targeted, why would they be immune?

Ray Ring

Senior Editor

Some ranchers — and their industry’s traditional leadership, such as National Cattlemen’s Beef Association etc — no doubt hate this AP news story.

The basics: The Clinton administration imposed the first tough regulations on how ranchers run livestock on federal lands in the West. Then kind of inevitably, the Bush administration, acting for industry, rolled back the grazing regs — along with hundreds of other environmental regs in a real rollback festival.

And kind of inevitably on June 8, a judge appointed by Clinton 12 years ago ruled against — VERY AGAINST — this particular Bush rollback.

Judge Lynn Winmill, based in Idaho, is clearly disgusted by a clearly corrupt process within Bush’s Bureau of Land Management. The ranching industry wrote the Bush dereg of grazing, the judge finds. Then the BLM faked the required gathering of public comments and ignored its own experts, who said dereg would probably be bad for the rangeland, streams and wildlife.

The enviro victory lap, for Western Watersheds and its leader, Jon Marvel, is here — and consider doing the download of the judge’s 52-page ruling. It’s the best read, because it’s unusually angry, comprehensive and clearly written. The judge lays out the history of federal rangelands being poorly managed, and his dissection of Bush’s BLM reveals some foul-smelling political guts.

For a quick profile of Judge Winmill himself, go here for my summation of interesting Western judges, and here for my take on the inherently political nature of the federal courts.

Ray Ring

Senior Editor

Most people who get sentenced to jail in this country endure harsh conditions. But some — those who can afford it — can now pay their jailers a fee to be housed in better conditions.

Jennifer Steinhauer of The New York Times has the story, reporting:

For offenders whose crimes are usually relatively minor … and whose bank accounts remain lofty, a dozen or so city jails across (California) offer pay-to-stay upgrades. Theirs are a clean, quiet, if not exactly recherché alternative to the standard county jails …

Many of the self-pay jails operate like secret velvet-roped nightclubs of the corrections world. You have to be in the know to even apply for entry, and even if the court approves your sentence there, jail administrators can operate like bouncers, rejecting anyone they wish.

(Read on …)

Jodi Peterson

Associate Editor

Under today’s ruling from the 9th Circuit Court of Appeals, the Bush administration can no longer ignore the fact that dams kill salmon just by being there. The ruling upheld Judge Redden’s 2005 decision to throw out a federal plan for saving endangered salmon and steelhead in the Columbia and Snake rivers (see HCN’s story Salmon Justice). That plan held that the government didn’t have to evaluate the effect of dams on fish, because dams were basically an immutable part of the natural environment; instead, it needed to consider only the effects of dam operations.

Environmentalists believe the ruling will boost dam removal efforts, which are also supported by former hydropower scientist Don Chapman (see HCN’s story Dam breaching gets a surprise endorsement). Rocky Barker reports for the Idaho Statesman:

“This decision should compel the federal agencies to finally produce an analysis that looks at all recovery options — including removing the four lower Snake River dams — and develop a solution that works for people and fish,” said Steve Mashuda, of Earthjustice, a lawyer for the coalition.

Jodi Peterson

Associate Editor

It’s been a bad week for would-be whistleblowers. Last spring, a former official at Interior filed a lawsuit accusing an oil company of underpaying royalties; in January, a jury found Kerr-McGee liable for nearly $8 million of unpaid royalties. The former official, Bobby L. Maxwell, would have gotten up to 30 percent of that amount under the False Claims Act, but U.S. District Judge Phillip Figa ruled on March 30 that Maxwell doesn’t qualify as a whistleblower and dismissed the verdict. (See our story on Maxwell’s case in “Taking the law into their own hands“.)

Bloomberg reports that “because Maxwell first provided the information as part of his professional duties, it didn’t constitute a ‘voluntary’ disclosure as required by law.”

Observers think the case will go on to the Supreme Court. Either way it will have big implications for government whistleblowers, as will another recent Supreme Court ruling. The Denver Post reports that the Rocky Flats employee who exposed Rockwell International’s waste disposal problems won’t get a share of a $4.2 million federal court award.

The high court’s ruling ended an 18-year legal battle but raised concerns that the court had removed the financial incentive for some potential whistle-blowers to come forward. Whistle-blower suits annually return about $3 billion to the government.

Jonathan Thompson

Editor in Chief

Arizona’s Snowbowl ski area won’t get sewage on its slopes anytime soon. On Monday, the U.S. Court of Appeals for the 9th Circuit ruled that the proposal to use treated wastewater to make snow at the ski area and to expand the ski area near Flagstaff violates the Religious Freedom Restoration Act, as reported by the Washington Post.

The proposal has been tied up in courts for a while, thanks mostly to protests by various tribes in the Southwest who consider the peak sacred (HCN covered the issue here). The Navajo Nation led the charge against the proposal (pdf).
Making snow where it doesn’t belong, and expanding a ski area during a time when the ski industry is flat or in a slump, is foolish. And it does, indeed, desecrate a sacred site. But one wonders why the Navajo Nation doesn’t expand its reverence to other sites it has deemed sacred. After all, even as Navajo President Joe Shirley Jr. celebrates the victory at Snowbowl, he’s also lobbying the New Mexico State Senate (pdf) to give Sithe Global, the builders of the proposed Desert Rock coal-fired power plant, an $85 million tax break.

The power plant, if and when it is built, will sit on the Navajo Nation near Shiprock, which is high on the list of tribal sacred spots. Two power plants nearby already cloud the air with sulfur dioxide, carbon dioxide, mercury and other pollutants. Though Desert Rock will be clean by pulverized coal plant standards, it will still pollute, and those pollutants will still affect — some would say desecrate — the sacred rock Tse’ Bit’a'i’ Anglos know as Shiprock. The Navajo Nation government strongly supports the project because of the economic development opportunities and jobs it will bring.

Go figure.

OK, we’re being a little self-absorbed here. But if the District Attorney were investigating your hometown, wouldn’t you want to know why? The Delta County Independent recently served up this little shocker:

The Office of the District Attorney, Seventh Judicial District is investigating the Town of Paonia.

Unfortunately, the Independent offered no illumination about what in the quaint and decent little town of Paonia, Colorado (corporate headquarters, as you all know, for High Country News) could possibly have happened to attract prosecutorial attention. The Independent’s tenacious reporting did uncover this bit of good news: The investigation does not have one single thing to do with “the retirement agreement for former town manager John Norris.” Even though the agreement was odiferous enough for the Independent to have written a separate story, contending the good-bye pact violated the law in several egregious ways.

We’re sure the fierce and talented investigators of the Independent will solve the DA mystery in due course. Still, we’re just bursting with curiosity, so feel free to send us your information on alleged perfidy in Paonia.

Which we still can’t believe exists, these two fine stories notwithstanding:

Retirement agreement violates Tabor and Sunshine laws

District attorney investigating Town of Paonia.