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Legislative and Regulatory Update

April 2002 by Staff

• Utah, fed up with federal and environmental policies, takes action
The state of Utah is taking a bold step to prevent the federal government and environmental groups from restricting the rights of Utah’s citizens. They’re creating an assistant attorney general position to help keep the federal government out the state’s business.

Utah Republican Representative Stephen Urquhart of St. George stated the move is necessary to protect “our way of life.”

Utah Attorney General Mark Shurtleff, also a Republican, said citizens have grown tired of federal restrictions and land grabs related to roads, national monuments, grazing and mining rights.

Just last year, Republican Governor Mike Leavitt threatened to sue the federal government over state claims to 15,000 dirt roads and trails spread across 24 million acres of BLM land. Since then, federal and state officials have been in negotiations to avoid a court battle. The roads are needed for access to mining claims, grazing areas, and recreation spots. Environmentalists dispute the legitimacy of the roads and say that with the state in control of the property, millions of acres will not be protected as official wilderness.

Shurtleff said lawmakers want to send a message to the federal government, and this way they send a messenger armed with a law degree.

Even though the budget is tight, they’ve come up with $140,000 to hire an assistant attorney general to defend Utah in lawsuits with the federal government. No one has been hired yet.

“There’s plenty of work, believe me. I could use two or three attorneys just to address the federal government overstepping its boundaries,” said Shurtleff.

“Legal gunslinger to take pot shots at the feds is kind of a vague job description,” said Sierra Club lobbyist Steve Erickson.

Representative Ralph Becker, a Democrat from Salt Lake City, called the move a waste of money.

Money for the new job will come from the Department of Natural Resources’ budget and the Constitutional Defense Fund, which was previously created by the Legislature to fight those battles.

Two-thirds of southern Utah is owned by the federal government.

“Environmental special interest groups are assaulting our way of life,” Urquhart said. “We’ve got to do something.”

Many western states have suffered from the same environmental extremist policies over the last decade and could benefit by taking a similar stance.

• Administration proposes ending fish protections to settle suit
The Bush administration is seeking to temporarily end habitat protections for 19 populations of salmon and steelhead in four Western states—including Washington, Oregon, California and Idaho.

In a proposed settlement entered in federal court, the National Marine Fisheries Service (NMFS) said it will eliminate and then revise the protections to settle lawsuits filed by the Association of California Water Agencies, National Association of Home Builders (NAHB) and 16 other groups.

Jim Lecky, the service’s Southwest regional administrator for protected resources, said the fish still will be protected under the Endangered Species Act while the habitat provisions are reworked, a process that could take roughly two years.

The developers and local governments filed suit, arguing the protections were “excessive, unduly vague, not justified as essential” and “not based upon a required analysis of economic impacts.”

Underscoring the magnitude of NMFS’ erroneous critical habitat designation for the 19 salmon and steelhead populations, NAHB recently uncovered and submitted in court a 1998 intra-agency memorandum in which a high-level NMFS official based in the Northwest stated that, “When we make critical habitat designations we just designate everything as critical, without an analysis of how much habitat……” is needed for a salmon population. The official added that no analysis of habitat need was performed “because we lack information.” (See “NMFS Official Admits Bogus ESA Analysis”—January 2002 issue, ICMJ.)

Critical habitat designations are one of the most controversial provisions of the Endangered Species Act. In some cases, they allow the National Marine and Fisheries Service and the Fish and Wildlife Service to limit or block activities in areas if threatened or endangered species may be harmed.

The “critical habitat” provisions for the salmon and steelhead were issued by the Clinton administration in February 2000. They outlined safeguards for populations of chinook, chum, coho and sockeye salmon and covered a wide swath of land, touching 150 watersheds, river segments, bays and estuaries in Washington, Oregon, California and Idaho, including metropolitan areas like Seattle and Portland. President Bush stressed that environmental decisions would be based on “sound science” during his campaign for President, which garnered him support from rural areas and land-use advocates.

The Fish and Wildlife Service also said recently that it plans to review, and in some cases set aside, critical habitat designations for up to 10 other endangered species in the West.

The government’s proposal to eliminate the protections stems from a decision in the 10th Circuit Court of Appeals requiring the federal agencies to do a better job analyzing the economic impact of the critical habitat protections.

U.S. District Judge Colleen Kollar-Kotelly, based in the District of Columbia, will decide whether to grant the motion for settlement.

• Court finds fault with Forest Service spotted owl study
Forest Service officials knowingly used faulty data of spotted owl habitat to block logging in a California forest, according to court documents obtained by The Washington Times.

The Forest Service did not have a “rational basis” for halting the timber sale to Wetsel-Oviatt Lumber Company, said the previously undisclosed ruling by Federal Claims Court Judge Lawrence S. Margolis.

The timber company’s lawyer, Gary Stevens, called the Forest Service data “junk science.”

The Times reported that the federal government also agreed to pay Wetsel-Oviatt $9.5 million for four canceled timber sales.

Judge Margolis ruled the Forest Service action was “arbitrary, capricious and without rational basis.” He also found that the officials knew their findings were faulty when they ordered the sale canceled.

“The Forest Service therefore breached its contractual obligation to fairly and honestly consider Wetsel’s bid on the sale,” he said after the four-day trial in 1998.

Another Forest Service document obtained by The Times revealed that the federal government has paid out compensation to lumber companies for 30 additional sales that were canceled in the 1990s.