A full-court press to save ecosystems

  • Jasper Carlton

    Anders Halverson

Note: this article is one of several in this issue about the Endangered Species Act.

Boulder, Colo. - Jasper Carlton, head of the Biodiversity Legal Foundation, sits at a table in his suburban townhome, intently sketching a map of the Selkirk ecosystem in northern Idaho.

"I spent time in those mountains for weeks on end in midwinter," he says of the days in the mid-1980s when he was working for the Idaho Department of Fish and Game. "I knew where the grizzly bear were and I knew where the lynx were. But it was three years before I saw my first caribou in the Selkirks."

The bearded, youthful-looking 55-year-old gets up, walks over to the wall and gazes reverently at a young caribou peering curiously from his frame into the room, "I took this photograph on that day," he says.

"Then all hell broke loose. The Forest Service continued to recommend clearcut logging right up into the border area.

"We started carrying dead caribou out of the woods. When I carried my third dead caribou out of the woods, the rage set in. I said: "It's over, we're going to federal protection."

"You can't do that," he whines, pretending to be a federal bureaucrat.

"Oh yes I can," says Carlton.

"I threatened a lawsuit against (Interior Secretary) James Watt and I won emergency listing of the Selkirk Woodland Caribou (under the Endangered Species Act). We drew up the complaint and on the day we were walking in to file the lawsuit the justice department attorneys met us."

"What do you want?" he asks in a hushed voice, recalling the question of a justice department attorney.

"I want emergency listing and immediate cessation of this timber sale by the Forest Service."

"Mr. Watt will give that to you."

He smiles at the memory of those words.

Guerrilla lawyering

For more than two decades, Jasper Carlton has fought for the protection of disappearing snails, frogs, snakes, birds, wild cats and bears, to name just a few. He has successfully sued every secretary of the Interior from James Watt to Bruce Babbitt and, by his own estimate, been involved in the listing of approximately 340 of the 944 species covered by the Endangered Species Act.

Currently he has all seven regional divisions of the U.S. Fish and Wildlife Service under court order. Each year they are required to report to him on their progress in listing species.

"They call it gonzo law, they call it guerrilla lawyering, they call it all kinds of things," he says. "We've been extremely successful in it. We've won almost every lawsuit we've brought."

Carlton's victories have brought tangible benefits to many species. Without his actions, the Selkirk woodland caribou might be gone, and species like the Western boreal toad and spotted frog might now be winking out without anyone batting an eye.

But some question whether the hundreds of petitions and lawsuits he has fired at the federal government over the past 20 years have fueled a backlash and set the stage for a major rollback of the Endangered Species Act.

Carlton dares anyone to show him where a lawsuit he has brought has caused any significant economic harm. "The lumber mills are still running in the Selkirks," he says.

Back in the mid-1980s, Carlton realized that the major wildlife organizations were focusing most of their attention on charismatic species such as the wolf and the grizzly bear. Neglected were the vast majority of plants and animals that form the broad base of ecosystems.

So, in 1991, Carlton started the Biodiversity Legal Foundation, whose mission is to save all the components of ecosystems. Funded by private donations and some foundations, Carlton has used the Endangered Species Act like a hammer, filing dozens of petitions to list disappearing species of plants and animals around the country, and dozens of lawsuits to make sure the petitions aren't ignored.

Carlton says biological reality has forced him to embrace a strategy based on litigation. "The scientific databases tell us that there are approximately 9,000 species of plants and animals in this country that are biologically threatened, yet we've only listed 900 and are only considering listing a few thousand. That's a huge gap."

At the moment Carlton is fighting 20 different lawsuits to protect such things as the spalding's catchfly, painted rock snail, amargosa toad, lynx, wolverine, fisher and grizzly bear.

"We've taken the approach ... of protecting ecosystems by protecting the sum of their parts," he explains. "Instead of one lawsuit we bring 10, 15, 20 lawsuits."

"We want him (the judge) to understand that invertebrates are the building blocks of biological systems and that they are the beginning of the food chain," Carlton says. "What happens to invertebrates happens to the birds. What happens to the prairie dogs happens to the ferruginous hawk and the swift fox and the burrowing owl. He will see how these bureaucratic foot-dragging agencies are just saying to hell with the law and bending to economic pressure. And they're doing it everywhere."

Carlton's application of ecosystem law reached a zenith in 1992, when he and the Fund for Animals filed a lawsuit on behalf of 443 species that the Fish and Wildlife Service had failed to list, despite ample scientific evidence that they are headed toward extinction. It was the biggest lawsuit in the history of the Endangered Species Act. Under the terms of an out-of-court settlement, the Fish and Wildlife Service has until Sept. 15, 1996, to decide what species should be proposed for listing.

To date, approximately 250 of the cases have been settled, with the agency proposing to list most of the species. But Carlton says, "They're avoiding listing species that are wide-ranging and have implications for landscape-scale protection: lynx, wolverine, fisher, bull trout."

The fate of the remaining candidate species was thrown into limbo this year when President Clinton signed a spending bill that includes a six-month moratorium on the listing of new species and a $1.5 million cutback in funding for listings.

Carlton believes the Fish and Wildlife Service is still bound to complete proposals for listing some species even during the moratorium. If Secretary of Interior Babbitt disagrees, Carlton says, he will see him in court.

Carlton also plans two other legal attacks: one against a proposed new regulation that would make it much more complicated for private citizens such as Carlton to petition for listing a species under the Endangered Species Act; the other against a regulation barring the listing of a species living on an international border, such as the Selkirk woodland caribou, if that species is not threatened in the neighboring country.

Like the specialized organisms he often defends, Carlton has a unique niche in the conservation movement. Though he has studied both science and the law, he never completed degrees in either field. Instead he has achieved remarkable success as an intermediary, bringing specialists from both fields together.

Carlton cut his activist teeth with the Sierra Club in the 1960s when David Brower was the executive director. Later he formed the first Friends of the Earth chapter in Tennessee.

Good science is his trademark. Even opponents say his petitions for listing species are biologically sound.

Before filing, "We break our backs to come up with a scientific consensus on a species," says Carlton. Often species are dropped from consideration because the data are inconclusive. And when his organization does take an agency to court, Carlton says, scientific integrity is paramount.

How does a man who calls himself "an amateur naturalist" pull together the best science in the business? "Let's just say I have a lot of whispering pines," says Carlton. "There are some very conscientious biologists out there working for the agencies. Almost every week I get little brown envelopes in the mail from somewhere in the country."

Carlton's approach of using good science and the Endangered Species Act to force land agencies to manage for entire ecosystems has spread.

Kieran Suckling of the Southwest Biological Diversity Project in Silver City, N.M., says five years ago he and a small group of activists invited Carlton down to a meeting to pick his brain.

Since that day, Suckling's group has gathered an immense amount of scientific information about the Southwest's plant and animal species and petitioned the U.S. Fish and Wildlife Service to list dozens of them, from well-known species such as the northern Goshawk to obscure varieties of desert fish. Where the agency has delayed a listing or denied it on political grounds, the group, like Carlton, has taken to the courts.

"Jasper got us set up and going," says Suckling. "He showed us the ropes."

Politically incorrect

Carlton's success has not come without a price. During his years as an activist he has received threats, had bricks thrown through his window, and been shot at twice. Three years ago his second marriage dissolved, and Carlton believes that it was due, in part, to the intensity of his activism.

"There's a tremendous personal price to pay in some of this," he says. "That's the biggest price I've paid. That's the biggest regret I have."

Carlton is aware that his aggressive legal tactics anger some people who charge that his activism has helped create a backlash.

"Jasper," he says, imitating the prim, cocktail voice of what he calls silver-spoon environmentalists, "you have to be politically correct."

"I say, what about being biologically correct? Look at every case we bring. The damned species is on the threshold of extinction. It's going to disappear from the wild and you're telling me to back off and you're supposed to be an environmentalist?"

Despite his tough rhetoric, Carlton admits that he has used the Endangered Species Act liberally without always building adequate public support. "I've been as delinquent in the past as other people in not tapping peoples' hearts. I've never met a frog I didn't like, but how do you get people to love a frog? I'm trying to change."

Carlton says his efforts to raise consciousness about lesser known species have been hindered by the major environmental groups. They have spent far too many resources protecting high-profile species like the grizzly and the wolf, he says, largely because those species are easy to use for fund raising. Dozens of other species, particularly native fish and amphibians, are only marginally helped by the protection of grizzly habitat, he says. "It was a mistake to try and save the whole Northern Rockies ecosystem on the back of the grizzly bear."

Likewise, he says, environmentalists erred when they tried to use the northern spotted owl to protect the Pacific Northwest's ancient forests. "We knew there were more than 100 species dependent on those forests," he says. "What if envrionmentalists had started 10 years earlier building the scientific case for the ecosystem, and had educated the public, the agencies and the politicians? It wouldn't have come down to a three-pound fuzzy owl versus the American way of life."

While Carlton damns corporations and politicians, he says he has no quarrel with rural people trying to make a living off the land. "I criticize the people that are exploiting them, that are feeding them lies, that are causing hate."

Carlton says he has a lot of respect for ranchers. "I don't think the majority of them want to destroy mother nature. I don't think they want Disneyland in the Rockies. I don't think they want condos. I don't think they want to see hundreds of thousands of tourists either. They want to make a living. They want to be able to pass on some of this. And I think we ought to be able to find ways of doing that."

One Idaho rancher in the Selkirk Mountains sticks in Carlton's mind. "He used to say, 'Right is right, wrong is wrong, and it's wrong to be destroying this wonderful wild country.' He never overgrazed anything. He rotated his range. He was proud that trout ran through the middle of his cow pasture. He didn't know I was considered a radical environmentalist, and we got along fabulously."

Even if the Endangered Species Act does take a hit this year, Carlton vows to fight on. "We've loaded our guns with non-ESA actions," he says. "We will make up with numbers what we lose in strength." His bullets include the Migratory Bird Treaty Act, the National Environmental Policy Act, the Administrative Procedures Act, and the National Forest Management Act.

To Carlton, the debate over the Endangered Species Act represents a broader societal debate. "It's whether we as a society are going to respect ecological compacts that say there are limits to economic growth in the public interest. We agree not to burn tires in our backyard that pollute the air of our neighbors, we agree not to dump toxic substances into the stream that fouls the water, we agree not to shoot bald eagles out of the air, and we can agree not to drive species into extinction by virtue of what we do on private lands."

With reason on both sides, Carlton hopes, a consensus can be reached. Otherwise, he warns, "we'll have a revolution."

For more information on the Biodiversity Legal Foundation write to P.O. Box 18327, Boulder, CO 80308-1327.

Anders Halverson is a former HCN intern who lives in Steamboat Springs, Colorado. HCN associate editor Paul Larmer contributed to this story.

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