A bare-knuckled trio goes after the Forest Service
But nine years later, the coming
together of these three environmental activists has staggered the timber industry in the Southwest and may force major changes in grazing practices on millions of acres of public lands.
The trio is composed of emergency room doctor Robin Silver, philosopher Kieran Suckling and biologist Peter Galvin. Their nonprofit Southwest Center for Biological Diversity has forced the federal government to add dozens of Southwestern plants and animals to its list of endangered species. After nearly a decade of bare-knuckled activism, they have expanded the primer on how to use the legal system to torque agencies into obeying the letter of the Endangered Species Act.
Although they now pay attention to dozens of species, they were brought together in 1989 by one - the Mexican spotted owl, that wide-eyed denizen of old-growth timber stands. continued on page 8
Silver, 45, whose avocation is wildlife photography, was taking pictures of the owl while documenting Arizona's endangered species for the state's Department of Game and Fish. He says he was angry about lack of protection for the species he was photographing, and that led him to file petitions and lawsuits on behalf of the birds.
He soon encountered an oddball pair of owl callers in the woods - Suckling and Galvin. Their temporary jobs with the Forest Service required them to wander the forest at night, calling for spotted owls. In theory, anyway, the nests they found could block timber sales.
The bird seekers had very different backgrounds. Galvin, 33, was pulled into the woods following a teenage bout with cancer, which focused him on saving nature - now. He was raised on Henry David Thoreau and trained as a biologist.
Suckling, also 33, had become convinced that human culture couldn't remain healthy or sane in a devastated environment. His interests include linguistics, computer science and philosophy.
To their shared commitment to the natural world, Silver brought zeal, Galvin a scientific shrewdness, and Suckling a sense of strategy. It proved a powerful combination.
One of the first things the trio did was bring in Endangered Species Act veteran Jasper Carlton of the Biodiversity Legal Foundation in Boulder, Colo. Carlton showed them his methods of gathering data on endangered species and his shotgun approach to petitioning the U.S. Fish and Wildlife Service to list species - and then suing the agency when it fails to respond in time.
Since 1989, they have filed close to 100 lawsuits, with roughly an 80 percent success record. Their lawsuits and appeals have forced the U.S. Forest Service to rewrite every forest plan in the Southwest and, in the process, have shut down the timber industry for months at a time (HCN, 8/5/96).
Paul Fink, forester for the Forest Service, says the agency "didn't do anything for 18 months' in 1996 and 1997 because of litigation and appeals. The dramatic fall in timber sold on the national forests reveals the effectiveness of the Southwest Center and other groups, including Forest Guardians in Santa Fe, N.M.
In 1990, Region 3 (national forests in Arizona and New Mexico) sold 320 million board-feet of timber. By 1995, that had dropped to 90 mbf.
Then in August 1995, a federal judge ordered the 11 national forests in the region to stop all logging until their forest plans adequately protected the Mexican spotted owl. When the moratorium ended in 1996, annual timber sale volume had plummeted to just 32.7 mbf.
The center's staffers rely on research they do, or that is done for them by a network of supportive scientists. Some of the scientific aid they get comes to them secretly.
The center's strategy: to identify the most endangered species in the Southwest, and then create a legal "train wreck" to block the logging, grazing and other activities that they say harm those species. In the end, they hope their hail of lawsuits will tilt the balance away from ranching, logging and mining in favor of wildlife and habitat protection.
"One of the historical and constantly repeated errors of the environmental movement," says Suckling, talking in the center's Tucson office, "is to think you're going to get incremental change by negotiating from a position of weakness. We strongly believe that social change does not come without social stress. These agencies are not going to fundamentally change their approach to managing public lands unless they, themselves, recognize they have to change. That's what the legal train wreck is."
The center has its fans within the mainstream environmental movement.
"They've certainly had a huge impact on what was an out-of-control logging program in the national forests," says Rob Smith, the Sierra Club's Southwest staff director. "They're very focused on the Southwest and on endangered plants and animals, and no one else has put this many people and this much effort into such a focused way ... We're just very lucky they showed up when they did."
But they also have critics, who say the center's all-or-nothing approach destroys without attempting to reform the traditional economies of the Southwest. The three men have received death threats, been ejected from public meetings, and earned the enmity of many loggers, ranchers, bureaucrats and elected officials.
One Justice Department lawyer lunged across a conference table and attacked a Southwest Center lawyer during a negotiation session. Silver's home in Phoenix has been repeatedly broken into. He now lives behind bars, protected by a state-of-the-art alarm system.
Critics maintain that the center's relentless lawsuits, uncompromising rhetoric and sometimes scathing personal attacks have polarized the debate and embittered opponents. They also say the center's actions have stoked moves by Congress to disembowel the Endangered Species Act.
"They're always provoking confrontation, even when the other side is willing to negotiate," said one environmental activist, who asked not to be named. "The purpose of hitting the mule over the head with the two-by-four is to get its attention. Once he's looking at you, you can stop with the stick."
C.B. "Doc" Lane, a spokesman for the Arizona Cattle Growers' Association, has few kind words for the Southwest Center: "They have no intention of helping with the debate," the former rancher says. "It's my sense that their intent is to make money filing lawsuits. This has nothing to do with the streams, or the ecology, or anything else. They object to commercial activities on any land in the state that's not private - and in some cases, such as the San Pedro, on private land as well. It's a whole different mind-set from what capitalism is founded on."
"They've certainly tied things up," says Pat Jackson, the Forest Service's regional appeals and litigation officer for the Southwestern region.
"If that's their agenda, they're certainly doing it," Jackson continues. "I think that some of the changes that have come out of the goshawk and the owl work have been good, but they've taken far too long to develop - principally because of the challenges from the Southwest Center. They made a two-year process into a four-year process in terms of getting forest plans amended.
"Overall," Jackson believes, "they've had very little positive impact. They cause the agency to spend a tremendous amount of time and energy and effort in ways that are not very fruitful. If they came to the table and sat down with us and worked through the projects and participated with us in a constructive way, it would be much better. Litigation is the least efficient way we can go about solving our problems."
Suckling, Galvin and Silver maintain that with more than 90 percent of the old-growth forests and Southwestern riparian areas already gone or degraded, there's no margin for compromise. More important, they say, an Endangered Species Act that's never invoked is indistinguishable from one that has been repealed.
From a shack to four offices
The Southwest Center for Biological Diversity started out in a shack in New Mexico, its fax machine powered by the sun. At first, Suckling and Galvin mounted their assault on the bureaucracy financed largely by Silver's pay as an emergency room doctor in Phoenix.
The center has since picked up 4,000 members; offices in Tucson, Phoenix, San Diego, Calif., and Silver City, N.M.; and an annual budget of $334,000. Half the money comes from donations and membership dues, a quarter from various foundations, and the rest from contracts with other environmental groups for whom they provide research or information.
The center's founders are backed by 16 biologists, land planners, ecologists and activists who often work as long as 12 hours a day for about $1,000 a month.
The range of activities is bewildering. Currently, biologists from the Southwest Center are working with the Forest Service to restore up to 20,000 acres of public forests to something approaching "natural" conditions, through tree thinning, duff removal, cattle removal, planting of native grasses and restoring natural fire regimes.
While cooperating with the Forest Service in one place, the center is in court in others, seeking to lower Lake Mead, whose waters threaten the nests of the Southwestern willow flycatcher; to curtail groundwater pumping that it says threatens the San Pedro River; and to prevent moviemaker Steven Spielberg and friends from developing real estate in a California wetlands. It is also trying to force designation of critical habitat for the loach minnow and spikedace in the Southwest, for the short-leaved Dudleya plant in San Diego County, and for the cactus ferruginous pygmy owl and the Huachuca water umbel in Arizona.
The center also triggered an international investigation into the plight of the San Pedro River under the terms of NAFTA, the North American Free Trade Agreement (HCN, 3/17/97).
Center activists can be audacious on more than one level. Venturing into environmental theater, the group paid a musician to write an "eco-opera," then cast 117 kids from a predominantly Hispanic elementary school in Tucson to star in the show. Staffers are unabashed headline-hunters. Dressing Robin Silver up as Santa Claus, they drew news cameras to cover a satirical press conference targeting then-Arizona Gov. Fife Symington, whose illegal real estate dealings have since earned him a prison sentence. Center activists joined a group of drum-beating Apache protesters in occupying a University of Arizona observatory to protest the construction of a telescope on Mount Graham (HCN, 7/24/95).
How they operate
The center's founders each offer a unique view on how they became the agents of environmental change in the Southwest.
"It's the science," says Peter Galvin, who has a master's degree in conservation biology. "The science is out there that tells us what is wrong. There is this incredible research community in North America that has produced studies that sit on the shelves because of the tremendous gap between science and policy. We try to assess the area where the gap is biggest between science and policy, and that's the area we're going to home in on."
Spotting the opening for a lawsuit is Galvin's forte.
"Peter initiates a lot of this stuff in this chaotic, creative fashion," says Suckling. "Peter is always thinking up the next new angle - the new point of attack, to the point where we can't even keep up. If we could implement everything that Peter could think of, we could bring industrial civilization to its knees. We always joke that we should just get Peter a van. He could drive around and look out the window and spot illegalities - like birders find hummingbirds."
Galvin says the center's success comes from focusing on winnable lawsuits. "We only take on the most drastic biological situations, where the facts are overwhelmingly apparent. There are hundreds of thousands of environmental violations every year, but just because it's illegal doesn't mean it can be brought to justice. For every lawsuit we file, there are 20 lawsuits we didn't file."
Robin Silver, still the godfather of the group, attended the University of Arizona on a tennis scholarship, switched to judo, attended medical school and then took up wildlife photography. Galvin calls him the quintessential "emergency room guy."
Silver sends fax updates to a far-flung list while his e-mails flash across the Net at 2:00, 3:00 or 4:00 a.m. That's when Silver gets home from a shift in the emergency room, still wired from the adrenaline induced by presiding over broken bones or a gory death.
The parallels between his work and environmental activism are interesting, Galvin says. "Endangered species work is like a MASH tent, where we're always triaging."
Suckling adds, "We're all sort of driving each other, working 16 hours a day and doing stuff people have never done before - huge lawsuits of insane proportions. And you're thinking, I can't keep this up. That's when Silver says, "Come on. There's 4 billion years of evolution at stake." And you say, "Right. I know my task now." "
Three men and a three-part strategy
When the three men first got together almost a decade ago, they didn't know their tasks. They knew the big problems - the degradation of the land and the vanishing of species - but they didn't know how to change the dynamic.
Their approach evolved step by step, but it started with the center's first act: the gathering of every scrap of available information on the most threatened species in the Southwest not yet on the federal endangered species list.
Staffers, then based in a tumbledown building in Luna, N.M., drew up a list of about 400 plants and animals, mostly by pulling together state and federal lists of species deemed threatened or "of special concern."
They interviewed about 100 scientists working on those species, which prompted them to add dozens of additional species to the government lists. Then they gathered everything they could find on the status of these species, creating a list of those most likely to become extinct if action wasn't taken.
That process yielded 50 species for which the group found solid scientific evidence suggesting they should be added to the 70 Southwestern species already listed as endangered.
"That was our building-block period, and to this day our success - not just in getting species listed but in winning timber sale appeals, winning lawsuits - has been because we're way ahead of the agency in terms of our knowledge of these species," says Suckling. "Once we started doing litigation, we were ready to go - we had all the information."
The second part of the center's master plan focused on using lawsuits to stop activities on the ground, creating a legal stalemate. Only then, center staffers believed, would systematic reform of public-lands policy begin.
The center started with logging, filing an array of lawsuits and appealing hundreds of timber sales. The barrage of lawsuits ultimately prompted the listing of 25 of the 50 species on the center's original list. It also reduced the timber harvest by 70 percent from its high water mark in 1989. Center lawsuits prompted the U.S. Fish and Wildlife Service to designate nearly 5 million acres as critical habitat for the Mexican spotted owl.
"Now you've got a crisis," says Suckling. "Now you've got the train wreck. The agency is going "Holy mackerel, if we keep going down this road, we'll never get anything done. We have to change the way we do business."
"And they did. The Forest Service has now agreed to legally bind itself to implementing the Mexican Spotted Owl Recovery Plan, which has never happened before."
A terrible weakness of the Endangered Species Act, he says, is that the recovery plan is optional. "No one is obligated to follow it."
Phase three is the most ambitious goal: fundamental reform of federal land-management agencies, which Suckling, Galvin and Silver believe have been corrupted by decades of collusion with ranchers, loggers and miners.
One example of the broader emphasis on reform is the formation of the Southwest Forest Alliance, a coalition of 56 environmental groups including the Sierra Club and the Audubon Society. They helped win a three-year, $700,000 grant from the Pew Charitable Trusts to underwrite the creation of the alliance, which has been trying to forge a unified vision of forest management - a vision that will bring environmental groups to the bargaining table as a single, unified voice.
The alliance has articulated an approach that protects the remaining big trees and limits logging to forest restoration and thinning of overstocked, small trees. But it has been buffeted by differences in strategy and temperament, as the center's confrontational approach clashes with groups that prefer consensus and negotiation to a policy of suing.
Galvin served as the paid staff member for the alliance for a time but soon returned to his more combative position with the Southwest Center.
Critics of Suckling, Silver and Galvin say their organization only pretends to be interested in compromise. "They want (the Southwest) to be pre-European settlement - period," says Doc Lane of the Arizona Cattle Growers' Association.
Now that the timber industry has been brought down, Lane says, the state's 1,500 ranchers are the center's next target.
"Try to sit down with them and discuss how to come to a mutual agreement, and they will tell you with no reluctance that they have no intention of talking to anyone. Their goal is to drive all industry off public lands," Lane says.
One portent can be discerned along the Gila River, where a center lawsuit prompted the U.S. Fish and Wildlife Service to examine BLM grazing allotments along the Gila River. The Fish and Wildlife Service reviewed the impact of grazing on some 63 riparian species, and agreed to allow the Bureau of Land Management and its lessees to "take" endangered species, providing they removed or reduced cattle on 15 allotments. The BLM is attempting to implement the Fish and Wildlife Service's findings, but the Southwest Center has filed another suit, this one against the Forest Service, to check cattle grazing on 92 additional grazing allotments in the Gila River basin.
Lane notes that related lawsuits have already been filed that could result in the same legal struggles that paralyzed the timber industry in the Southwest in recent years. But ranchers are more vulnerable to the uncertainty and delaying tactics, he says, because family-owned ventures are struggling to make a living on marginal rangeland.
Lane dismisses allegations that more than 90 percent of the state's riparian areas are destroyed or degraded. He maintains that ranchers do far more good on the land than harm: They provide water for wildlife, prevent brushfires by keeping grasses under control and block piecemeal urbanization of scattered tracts of land.
Prospects for the ranching industry in the Southwest are bleak, concludes Lane, because federal agencies are mostly paralyzed by few resources and widespread demoralization. Meanwhile, the lawsuits promise to bury anyone seeking solutions that would safeguard both endangered ranchers and endangered species, he says.
"You don't kill a fly with a sledge hammer - but that's (the center's) only solution," Lane says. "There's no way to get ahead of the juggernaut ... (it's a) litigation maze."
Suckling would be pleased at the bitter compliment.
He says cattle have devastated riparian areas throughout the Southwest, and he dismisses the alleged benefits of public-lands ranching, noting that ranching accounts for less than 5 percent of the jobs in rural areas. Moreover, he says, ranchers are already selling out to ranchettes whenever they get a reasonable offer. While a reformed timber industry could restore forests by thinning small trees, he believes, ranching offers no such scaled-down benefit.
"I could take the easy way out and give you the BS line, which is, ranching is OK where it's "ecologically sustainable." But what is that? That's just a vague statement designed to keep everybody happy. Show me a national forest grazing allotment in Arizona or New Mexico that is not trashed, and I'll sit down and talk about sustainable grazing. It doesn't exist," Suckling says.
"Whenever people talk about grazing areas in the Southwest that aren't trashed, it's not a national forest allotment. It's someplace like the Malpai Group, which is mostly private land with low-elevation grassland that actually has grass and has evolved with heavy grazing."
Suckling believes that to reform ranching, a train wreck has to happen.
"It's just a question of how many times you've got to whack them with the two-by-four before they wake. I guess they're in various degrees of awakeness now. The timber people are waking up. The grazing managers are still operating in the 19th century."
Clearly, the Southwest Center has only begun to fight - for better or worse.
"We have a sense that time is running out for the things we believe in," says Galvin. "Sometimes people wonder "Am I doing the right thing?" But if you study history enough, you know when you're doing the right thing, and how important it is not to pause - even for a moment."
Peter Aleshire, a former reporter for the Arizona Republic, lives in Phoenix.
The Southwest Center for Biological Diversity can be reached at 520/623-5252.