SUPREME COURT: ESA CAN BE TRUMPED
By W. Scott
January 14, 2008
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.
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.
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.
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.
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.
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
wasn’t there for the announcement, Josephine County
resident and attorney Jack Swift was very pleased to hear
as vice-chairman for the Southern Oregon Resource Alliance
(SORA), a non-profit organization devoted to resource
management and conservation.
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.
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
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.
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.
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.
eliminates all discretion and establishes a command,”
Swift said. “There is no wiggle room on this one.”
could not have come at a more crucial time for Josephine
County, which remains in the midst of a funding crisis.
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.
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.
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.
Swift expects the environmental community to continue its
fight, and expects a major push for the legislative repeal
of the O&C Act.
that they would have to go there,” Swift said.
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.
also aware that the fight over Oregon’s natural resources
is far from over, and may be starting anew.
December 12, 2007 announcement of the Supreme Court
ruling, Raffenburg prepared audience members for what may
very well become a protracted legal battle.
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.”
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.
information about SORA, e-mail