Bill Jennings, a veteran fisheries activist in Stockton, Calif., remembers the Christmas season of 2004 as "a nightmare." He adds: "It was absurd."
He's talking about how some of the West's most powerful farmers tried to throw off the yoke of environmental law. Like countless similar battles, this one came down in a courtroom, in a case titled Tulare Lake Basin Water Storage District, et al., v. The United States.
For decades, the farmers had diverted rivers and dried up a huge lake to grow hundreds of thousands of acres of crops south of Stockton, resulting in catastrophic losses of fish and birds. Finally, during a 1990s drought, wildlife agencies invoked the Endangered Species Act and withheld some irrigation water, trying to save vanishing populations of chinook salmon and Delta smelt. That triggered the farmers' lawsuit.
The farmers demanded payment for surrendering the water. They claimed that the government's environmental action violated the U.S. Constitution's Fifth Amendment, which holds that no property shall be taken without compensation. They found a sympathetic listener in Judge John Paul Wiese, at the U.S. Court of Federal Claims in Washington, D.C. In a surprising series of rulings, Judge Wiese ordered the government to pay the farmers as much as $26 million. Many believed that if the feds filed an appeal, a higher court would overturn the rulings. But five days before Christmas, the George W. Bush administration settled the case and agreed to pay $16.7 million.
The Tulare outcome hit like a thunderbolt. The farmers' lawyer, Roger Marzulla of the D.C.-based lawfirm Marzulla & Marzulla, told Greenwire, "This is the first time (the government has) been required to pay for anything" related to enforcing the Endangered Species Act. The West's leading anti-green congressman at the time, Calif. Rep. Richard Pombo, R, could barely control his glee. "This case should spell profound change for conservation policy," he told the Washington Post. A California water official, in the Los Angeles Times, called it "a devastating setback for the environment."
If the logic of the Tulare rulings spread, enforcement of many environmental laws might cost the government billions. And if the government preferred not to pay, the laws would be castrated.
More striking, Marzulla & Marzulla stood among a battalion of lawfirms dedicated to challenging environmental laws. The movement had its roots in the West and appeared to be making progress on many fronts, firing a barrage of lawsuits and claiming a run of important victories in the late 1990s and early 2000s. They'd rolled back regulations covering not only endangered species, but also cattle grazing, commercial development and many other activities. They even seemed to be on the brink of redefining government employees as criminal "racketeers."
"I think this fight is going to get a lot meaner ..." predicted Andrew Lloyd, a lawyer for Pacific Legal Foundation, another firm leading the charge, in California's West County Times in January 2005. He and others envisioned more lawsuits and more big victories.
These days, the anti-regulation lawyers still portray themselves as wizards, shooting bolts of legal lightning at the government agencies and power-hungry environmentalists who oppress them and their clients. In press releases, news and opinion articles and speeches, they boast about carrying out a crucial role.
To get a better sense of their role, I explored the legal battlefields and visited some of the movement's key Western lawfirms. I found a group of people who believe strongly in freedom and individual rights.
But their record includes some recent big defeats, and their conviction arguably outweighs their influence. I found that they may indeed be legal wizards, but more in the mode of a Wizard of Oz: They're full of sound and fury out front, but if you pull back the curtain, they're not so formidable.
ENVIRONMENTAL REGULATION became a formidable force in the decade and a half that began in 1964. During that time, Congress and state legislatures passed a torrent of new laws protecting wilderness and endangered species, requiring the study of environmental impacts, setting tough standards for clean water and air, and applying limits to grazing, mining, logging and driving on public lands.
The regulations poked at some peoples' livelihoods and chafed against their beliefs, especially in the West, the region with the most public land. So they began to hire lawyers to fight back. The ragtag resistance grew into a movement with the 1973 founding of Pacific Legal Foundation, headquartered in Sacramento, Calif. It's a nonprofit lawfirm, following the model of older, liberal nonprofit firms, such as those associated with the American Civil Liberties Union and environmental groups.
Oil and tobacco corporations, chamber of commerce groups, and rightwing billionaires such as Joseph Coors (a Colorado beer baron), Richard Mellon Scaife (a Pittsburgh heir to the Mellon banking, oil and aluminum empire), and John Simon Fluor (a California mining, nuclear and oil baron) poured millions of dollars into launching Pacific Legal Foundation and similar nonprofit lawfirms across the country.
The most famous is Mountain States Legal Foundation, founded in Denver in 1976. Mountain States has helped launch two lawyers -- James Watt in the early 1980s and Gale Norton in the early 2000s -- to tenures as secretaries of the Interior. Each used the cabinet post to push general deregulation and the commercial uses of federal lands.
The movement has grown to include the D.C.-area Institute for Justice, which describes itself as "a merry band of litigators," run by William "Chip" Mellor, formerly of Mountain States Legal. Dozens of lawyers in private practice also jumped into the fray. Roger Marzulla is among the most prominent, as is Karen Budd-Falen, a specialist in ranchers' cases based in Cheyenne, Wyo. Both of them also had stints with Mountain States Legal. These lawyers share similar or identical goals, they're related to each other through overlapping resumes and backers, and they file briefs supporting each other's cases. Many of them got to know each other while working for Ronald Reagan, when Reagan was California's governor in the 1970s, or when he was president during the 1980s. They're also tied in with the libertarian, property-rights think tanks, such as the Cato Institute.
Those in the movement and those who study it call it by various names, including the Freedom-Based Public Interest Law Movement, or just the property-rights lawyers. For Westerners, the most accurate term would be Sagebrush Rebel lawyers: They're entwined with the angry rebellion that began in 1979, when many Western legislatures claimed authority over federal land, and continues today in local flare-ups against the feds.
The lawyers, and their clients, have some legitimate complaints. Environmental laws, especially in their infancy in the 1970s and 1980s, did tend toward bullying and unrealistic expectations. For instance, the Clean Water Act, the Clean Air Act, and other laws vowed to catalog and choke off hundreds of thousands of pollution sources within a few years. Anyone who didn't cooperate was subject to penalties.
"The game of politics is largely a struggle for control of the initiative," says Gregg Cawley, head of the political science department at the University of Wyoming, in a book he wrote about the Sagebrush Rebellion. Environmentalists had the initiative at the start as they set up their enforcement strategy. Then the anti-regulation forces rose up and took the lead.