Supreme Court: ESA Can Be Trumped

By W. Scott Jorgensen
Posted 1:00 AM Eastern
January 14, 2008
KAJO-Radio and NewsWithViews.com

It has long been assumed that the 1973 Endangered Species Act (ESA) was the final word in any environmental dispute involving conflicting statues. Environmental groups have long used that assumption to their advantage, and have used the courts at every opportunity to try and stop projects they deem harmful to Mother Nature.

However, a June 25, 2007 ruling by the United States Supreme Court in the case of National Association of Homebuilders vs. Defenders of Wildlife may change the way future environmental lawsuits are handled in court, and may have a nationwide impact.

The ruling has already been met enthusiastically in some parts of the country. Josephine County, Oregon is a rural area in the Southwest corner of the state. Most of the county is federally-owned forest land, which was set aside for permanent timber production as part of the 1937 O&C (Oregon & California Railroad) Act.

Because of that, the county was hit particularly hard after the 1994 Northwest Forest Plan drastically cut logging on federal lands. Most of the area’s mills closed permanently, which ended the region’s primary source of family-wage jobs.

The economy has changed somewhat since then, and has been aided by an influx of retiring baby boomers drawn to the laid-back lifestyle, mild climate and relatively low cost of living. But there has long been a sense among locals that things just aren’t the way they used to be, and that something has been missing for the last decade and a half.

On December 12, 2007 , Josephine County Commissioner Jim Raffenburg announced the Supreme Court ruling during the commissioners’ weekly business session. Those in attendance that day responded to Raffenburg’s announcement with loud cheers and tremendous applause.

Though he wasn’t there for the announcement, Josephine County resident and attorney Jack Swift was very pleased to hear about it.

Swift serves as vice-chairman for the Southern Oregon Resource Alliance (SORA), a non-profit organization devoted to resource management and conservation.

According to Swift, the original assumptions regarding the E.S.A. stemmed from the Supreme Court’s 1978 ruling in the case of the Tennessee Valley Authority vs. Hill.

That particular case dealt with a conflict between critical habitat protection and Congressional funding of a dam project, and the court ruled that the E.S.A. trumps federal appropriations.

In National Association of Homebuilders vs. Defenders of Wildlife, the court had to decide between conflicting statues in the E.S.A. and the federal Clean Water Act.

The court’s 5-4 ruling, Swift said, means that “a statute dealing with a narrow, precise and specific subject is not submerged by a later enacted statute.” Swift said such a ruling can be applied to the contradictions between what is required by the E.S.A. and the 1937 O&C Act. In such a conflict, Swift said, the O&C Act wins out.

Provisions of the 1937 act specifically state that the federal O&C lands “shall” be set aside for permanent timber production for the sake of providing revenue to the local county governments. The use of the word “shall” eliminates any legal doubts as to the law’s true intent, Swift said.

“’Shall’ eliminates all discretion and establishes a command,” Swift said. “There is no wiggle room on this one.”

The ruling could not have come at a more crucial time for Josephine County , which remains in the midst of a funding crisis.

Ever since the 1994 Northwest Forest Act, county services in rural Oregon have been bolstered by federal payments in lieu of timber receipts. But federal legislation authorizing those payments has expired, and attempted tax hikes in the affected counties were crushed by voters last spring.

The federal payments served as a band-aid of sorts, placed directly over the wounds suffered during the first round of the Pacific Northwest timber wars. But in the absence of those payments, those old wounds are beginning to fester again.

While there is no doubt that the environmental community came out on top in the first round of the timber wars, the new Supreme Court ruling provides ammunition for an industry that still finds itself largely under siege and struggling to survive, having been marked for extinction some time ago.

However, Swift expects the environmental community to continue its fight, and expects a major push for the legislative repeal of the O&C Act.

“I deduce that they would have to go there,” Swift said.

Environmental groups have already floated proposals at the local level to transfer the O&C lands to the National Forest Service, which would also take it out of the realm of the 1937 act.

Raffenburg is also aware that the fight over Oregon ’s natural resources is far from over, and may be starting anew.  

During his December 12, 2007 announcement of the Supreme Court ruling, Raffenburg prepared audience members for what may very well become a protracted legal battle.

“The environmental industry will still sue to stop future harvests, but they have lost the legal basis to prevail and they can no longer claim that the law is on their side,” Raffenburg said. “This is not a time to sit back and believe we’re finished. We will never be finished because rights must be defended constantly by those who cherish them. Those who believe they have to ‘protect us from ourselves’ are elitists who do not believe the rights that protect all from their view of the ‘common good’ are as important as their need for control.”  

Raffenburg’s message came at a time when sheriff’s patrols in Josephine County are few and far between, and the county’s libraries have been closed for months due to lack of funding.

But it also provided a glimmer of hope that Southwest Oregon may someday regain its economic prosperity, and no longer be dependent on the whims of an increasingly dysfunctional and debt-ridden federal government to provide the most basic of services to its residents.

One thing is for certain – this issue isn’t going away any time soon.

For more information about SORA, e-mail sora1976@gmail.com.

© 2008 NWV/KAJO Radio - All Rights Reserved

W. Scott Jorgensen is a resident of Grants Pass , Oregon and serves as the news director for KAJO and KLDR radio. He has reported for various daily, weekly and monthly newspapers and also worked as a press secretary for a 2004 Congressional campaign and as an aide in the 2005 Oregon Legislature. He can be reached at: williamjorgensen@hotmail.com.

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