I remember the first big story I covered for High Country News. It was back in the spring of 1994, and my headline shouted, "The salmon win one: Judge tells agencies to obey the law." The story focused on federal Judge Malcolm Marsh’s landmark ruling, in which he told the National Marine Fisheries Service that it had been "arbitrary and capricious" in determining that federal dam operations on the Columbia and Snake rivers posed "no jeopardy" to endangered salmon species (HCN, 4/18/94: The salmon win one: Judge tells agencies to obey the law).
Marsh ordered the government to quickly come up with a real plan to
protect fish, and conservationists were ecstatic. Finally, they
cried, the objective force of law would overcome the political
clout and the inertia of the federal dam operators.
was a slam-dunk legal victory. But as in basketball, one slam dunk
does not win the game. Over the past decade, salmon advocates have
struggled mightily to realize the promise of Judge Marsh’s
decision. The federal agencies, aided by pro-industry leaders in
Congress and the presidential administrations of Clinton and Bush,
have only reluctantly changed the way they do business.
Counter-lawsuits and legislative riders have further slowed
progress. Though the dam operations today are improved, they still
kill fish, and the salmon are still in trouble.
our government’s system of checks and balances, every great
Western environmental debate has taken a similar plodding,
ping-pong pathway toward progress. Conservationists can get
Congress to pass strong environmental laws, and they can sue when
those laws are flouted. But even when federal judges agree with
them, environmentalists are not assured of victory.
only are the three branches of government able to constantly
correct each other (or foul each other up, depending on your
viewpoint), but the one branch usually perceived as the sturdiest
is actually quite susceptible to the sway of political winds, as
this issue’s cover story by Ray Ring shows.
judges are appointed by the president, and more often than not they
reflect the president’s own political inclinations. The
politicization of the courts — which George W. Bush is
pursuing more enthusiastically than ever — has created an
increasingly hazardous landscape for conservationists. It is one of
the reasons why issues like the protection of roadless public
lands, natural gas development, and snowmobiles in Yellowstone are
being batted around by Congress, the administration and the courts,
with no resolution in sight.
It’s a messy,
infuriating system, but it’s our system, and if
conservationists hope to make it work on behalf of the environment,
then they must diligently work all three governmental branches
They must actively oppose federal
judge nominees who are ideologically opposed to environmental
regulation and public ownership of land, and support those who are
fair-minded and moderate. Fortunately, this is happening, as groups
like Earthjustice and the Sierra Club turn a spotlight on the
Environmental organizations are not
waging this battle alone. They have forged alliances with other
progressive coalitions — including labor and civil rights
organizations — deeply concerned about the rightward shift of
the federal courts.
This is a smart strategy, because in
the end, intelligent teamwork, not one-on-one heroic slam dunks, is
going to win the game.