A lawsuit to force the federal government to add the Atlantic salmon to the endangered species list has exposed a secret deal between Interior Secretary Bruce Babbitt and Defense Secretary William Cohen. Cohen and Babbitt aren’t talking, citing litigation, but at least one staff member called it politics as usual. The nation’s top environmental lawyers call it illegal.
Internal agency memos show that at the height of the Republican Congress’ Contract With America fever in early 1995, Cohen, then a moderate Republican senator from Maine, sent a letter to Babbitt complaining about the way a U.S. Fish and Wildlife Service proposal to list the Atlantic salmon as an endangered species would affect Maine industries. In it, Cohen bluntly threatened to join his party’s attempts to gut the Endangered Species Act if the proposal wasn’t dropped.
Within the next few weeks, agency memos reveal, Babbitt put the brakes on listing the fish, over vehement protests by federal scientists. Today, the nation’s top environmental attorneys say that Babbitt’s action violated the law. The Endangered Species Act clearly mandates that science should be the only criteria for listing species. “Babbitt broke the law, period,” says Mark Hughes, executive director of Earthlaw, a Boulder, Colo., environmental law firm.
The Atlantic salmon could become a national political issue, since last month Babbitt once again proposed adding the salmon, which spawns in Maine rivers, to the endangered list. Maine’s governor, Angus King, a vocal opponent of listing, is putting the heat on Vice President Al Gore, who is facing a tough primary challenge from former Sen. Bill Bradley in neighboring New Hampshire. King wants Gore to block the listing, which he says would protect the fish by banning fish farming and agricultural irrigation in Maine rivers and throwing thousands out of work. But the current dust-up ignores the long history of compromises already made on protecting the salmon.
Spokesmen for both Babbitt and Cohen declined comment on the 1995 deliberations about the salmon, citing ongoing litigation. The incriminating documents surfaced recently in lawsuits brought by Defenders of Wildlife, Trout Unlimited and the Atlantic Salmon Federation to force the U.S. Fish and Wildlife Service to list the salmon on an emergency basis.
The number of endangered species lawsuits against the federal government has quadrupled over the past five years, exposing a pattern of avoidance and delay that casts doubt on the U.S. Fish and Wildlife Service’s ability to do its job in the face of unrelenting pressure — some would call it bullying — from a hostile Congress. Some conservationists charge that the agency doesn’t realize that the political climate has changed. They think the Clinton administration’s mistaken belief that it’s necessary to gut the law in order to save it has resulted in a pattern of questionable, often illegal deal-making.
While the case of the Atlantic salmon may be typical of the administration’s legally questionable dealings on endangered species, this is the first time anyone has come up with a smoking gun, much less one that bears the fingerprints of two Cabinet officials.
At the time Europeans settled in New England, there were about a million salmon there. Over the next three centuries, the region’s forests were razed, thousands of dams were built, fishing became industrialized and salmon, gradually, disappeared. Today, only 200-300 New England salmon still contain enough unique genetic characteristics, which are linked to their natal streams, to be considered wild.
So the federal government began moving to include the Atlantic salmon on the Endangered Species list. But on Feb. 8, 1995, Cohen, then a senator from Maine, sent a letter to Babbitt stating that protecting the state’s 75 or so remaining adult wild salmon would “have a serious impact on Maine’s agriculture, forest products, and aquaculture industries.”
He added ominously: “The disposition of this [Atlantic salmon] petition will greatly affect my views regarding changes to the Endangered Species Act that might be warranted.”
Interoffice memos and e-mails over the next few weeks reveal that Babbitt responded quickly. A March 1, 1995, e-mail from Chris Mantzaris of the National Marine Fisheries Service, which shares jurisdiction over the salmon with the U.S. Fish and Wildlife Service, stated that “Senator Cohen sent a letter to Brown [Ron Brown, who headed the Department of Commerce, which includes the National Marine Fisheries Service] and Babbitt opposing a listing actions. Babbitt took this very seriously and has requested that the federal register notice be redrafted to state that the petitioned action is not warranted.”
The biologist’s e-mail added, “The Region does not agree and neither do staff level people in HQ.” These words were echoed in a blistering memo from another NMFS biologist, John Kocik. The March 3, 1995, memo stated: “It is my opinion that the proposed changes compromise the intent of the Act and the integrity of the science.”
Kocik was right, according to the nation’s top environmental lawyers. “It was a constitutional moment,” says Zygmunt Plater, a legendary Boston College law professor who worked on the nation’s first major ESA case, the 1970s effort to stop the Tellico Dam to protect the snail darter. Plater believes the early days of the Contract With America signaled a historic power shift from government to industry, with lobbyists writing legislation and the U.S. House of Representatives “essentially repealing a series of major statutes that regulate the marketplace.”
“The 104th Congress put tremendous pressure on people like Babbitt. When you have one branch of the federal government asserting primary power, with the Reagan and Nixon appointees on the Supreme Court deferring to it, it is a major shift. The multimillion-dollar paper, timber and other industry groups that are dedicated to destroying the Endangered Species Act really seemed to hold sway at that time. They represent far more money than the federal government has for endangered species law enforcement. The agencies were cowering in fear, literally paralyzed with fear.”
In this charged atmosphere, could Babbitt have done anything differently? Maybe, maybe not. But Babbitt’s continuing penchant for back-room deals may leave him with an uncertain legacy at Interior. The former Arizona governor once told me, “Compromise isn’t the answer some of the time; it’s the answer all the time.”
And compromise was certainly the approach taken in Maine. After receiving Cohen’s letter, Babbitt ordered that the salmon be placed in a special category called a “candidate species,” a kind of bureaucratic limbo for threatened and endangered species. Several months later, the U.S. Fish and Wildlife Service did renew its proposal to list the species, but this time it was downgraded to threatened, a category providing less protection.
Shortly afterward, Congress placed an 18-month moratorium on new listing. After the moratorium was lifted, the federal proposal to list the salmon was withdrawn completely, in favor of letting the state of Maine carry out its own plan for saving the fish, which would have been prohibited under the more stringent endangered listing originally proposed.
About a year ago, not long after a similar arrangement in Oregon was thrown out by a federal judge, Maine’s plan flunked a review by federal authorities.
Now it appears that Maine’s wild salmon are in even more trouble, as new diseases threaten to reach epidemic proportions without sufficient controls on aquaculture. The industry’s reliance on hybrid fish that are partly descended from farmed European salmon — a practice banned in Canada, which has its own worries about native fish — is also causing alarm because of the possibility that escapees will taint the dwindling native gene pool. Catch and release fishing for sea-run Atlantic salmon was banned only last week to ensure greater protection for the fish.
On Nov. 18, the U.S. Fish and Wildlife Service once again proposed listing the Atlantic salmon as endangered, over the loud protests of Maine Gov. Angus King, Republican Sen. Olympia Snowe and the state’s powerful aquaculture interests. Ironically, the aquaculture industry may have been hurt most by the four-year delay, which has allowed it to up its investment in non-native strains of salmon that could be banned once the ESA takes effect.
Conservationists like Mike Senatore of Defenders of Wildlife say that this is a perfect example of how the Clinton administration’s insistence on a win-win policy ends up in losers all around.
But even a federal judge won’t be able to answer the question haunting the whole debate: If New England’s wild Atlantic salmon die out, will we ever know if the politically inspired delay pushed them over the edge?
Scientifically, it’s a tough call. But the legal questions are easier to answer. Did Babbitt break the law? Hughes, Plater and a raft of other environmental lawyers contacted for this article all say yes.
What about Cohen? Given the desperate politics of the time, shouldn’t blame be laid at his doorstep rather than Babbitt’s? David Carle, the New Hampshire environmentalist who unearthed Cohen’s letter prior to the lawsuit, believes the senator-turned-defense secretary’s war on the pink fish was not only unethical but possibly illegal. After all, Carle notes, hasn’t Cohen, a Vietnam veteran, sworn — at least twice, if not three times — to uphold the law of the land?
“It’s an interesting question,” muses Mark Hughes of Earthlaw. “If this were a white-collar criminal trial, Cohen’s letter would certainly be enough to qualify as a threat. But legality depends on context. So I’d say it’s reprehensible and, not only that, it’s stupid. But not necessarily illegal.”
Back in February, I was probably the last person left on earth who had trouble identifying Tiger Woods, the golfing phenomenon who won the Master’s tournament in 1997 at the age of 21. I’ve spent the last decade in the sheltered world of environmental politics and the only sport I really know about is the blood sport commonly known as an election.
But I’ve always had a secret desire to go Hollywood, and an editor at Icon magazine decided to try me out by having me interview Tiger Woods’ father, Earl, reasoning that a bona fide reporter might get him to say something interesting.
The night before the interview, I went to a local Border’s Books cafe and speed-read — but didn’t buy — the most recent of Earl Woods’ autobiographies. I was relieved to find there was more than advice about improving your swing. With a Thai mother and a black father who also claims Chinese and Native American blood, Tiger Woods is the sports equivalent of a Benetton ad. And his father had a lot to say. Earl’s book, “Playing Through,” forced me to think more carefully about the racism faced by African-Americans of my parents’ generation, who came before black power but after the worst of Jim Crow.
And Earl Woods was a jazz fan.
OK, I thought. I can do this.
Earl was a good interview, wittier than I expected, a bit pompous at times, but very intelligent. We talked for about two hours on the telephone.
For the article, I selected quotes that emphasized the themes I found most interesting: the creative similarities between jazz and golf, and Earl’s experiences with racism compared to Tiger’s milder ones, and a funny — I thought — riff on the awful weather in Scotland, golf’s heartland, which Woods insisted was a worse place to play the game than Africa.
I turned the piece in and I forgot about the whole thing.
That is, until Monday, when I got a frantic message from a reporter from Golf World. The magazine had zeroed in on the Scotland joke, which it deemed racist. Here’s what Earl said about Scotland (Icon tightened it up a tad):
“That’s for white people. It’s the heart of golf for people who came from there. It sucks as far as I’m concerned. It is the sorriest weather and I’ve made the public statement that people had better be happy that the Scots lived there instead of soul brothers. The game of golf would have never been invented. We would have been inside listening to jazz and we wouldn’t have been stupid enough to go out in that weather and play a silly-ass game and freeze yourself to death. We would have been inside laughing and joking with rum and stuff. Now, Africa … I played golf in Africa and I knew I was home.”
Golf World wanted to equate his remarks with those of Fuzzy Zoeller, who became a sports world pariah in 1997 for joking that Tiger Woods would serve fried chicken and collard greens at the next Master’s dinner.
I knew about as much about Fuzzy Zoeller as I had known about Tiger Woods. But I had to say something, because Earl was denying that he said this to me; in fact, he was denying that he had even given the interview. Of course, I had the tape to prove it.
The next thing I knew, I was giving a sound bite. “Earl Woods has paid his dues,” I told the Golf World guy. “He’s entitled to crack a joke.”
Golf World’s piece closed with my quote and the following kicker: “Isn’t that what Fuzzy Zoeller said?”
Oy. Over at Icon, the publicity folks were going into overdrive. “You sounded great,” one told me as I cringed on the other side of the telephone line. “Believe me, this is my business. I’ve got USA Today calling you.”
“But I want to talk about context,” I said feebly.
Yeah, right.
I felt sorry for Woods, until the publicity guy reminded me that he was attacking my professional credibility and lying to save his ass at my expense. Or maybe he genuinely didn’t remember talking to me. Maybe.
I listened to the tape I’d made of our conversation. After Earl finished his Scotland rap, I heard myself mentioning that he was awfully plainspoken for someone who had done 20 years in the military. I think I even called him “sir.”
“That’s my biggest problem,” was Woods’ response. “I’m honest. I tell the truth. And people can’t handle that.” He actually went on about this for some time.
OK, I thought. Maybe I’m pissed off enough to ride this little PR pony out the gate. After all, I have a book to promote. About an hour later, I lobbed off a quote to USA Today. This one wasn’t quite as dumb. Instead, it was revoltingly self-serving, and syntactically moronic. “Journalists tend to oversimplify race,” I said. “This article didn’t do that. It’s unfortunate that Earl Woods, a guy who’s paid a lot of dues, feels that he has to duck and cover because of a media feeding frenzy.”
Whoa, baby. Block that metaphor.
The so-called feeding frenzy abated by afternoon, when the East Coast closed down. When I actually had time to think about it, the whole thing seemed farcical.
First, what Fuzzy Zoeller said was racist — and it wasn’t funny. What Earl said wasn’t racist — and it was funny. Earl wasn’t saying anything bad about Scots. He was just saying that Scotland has lousy weather. Does anyone except for seagulls and lobsters consider this debatable?
If anything, Earl’s comments stereotyped blacks. But Richard Pryor and Chris Rock have proved that blacks can say things about blacks that whites simply can’t.
The tone of the Golf World story was that of angry white frat boys who blame affirmative action for their own mediocrity.
But the truly lousy part is that the subtlety in my conversation with Earl Woods was lost. Like typical strangers, we talked about the weather. Earl already knew from our conversation — about New York, about jazz — that like him, I wouldn’t be caught dead playing golf in that freezing Scottish rain. I’d be inside listening to jazz and drinking rum. And, like him, I’d rather be in Africa, anyway. He was being charming by including me in the company of “soul brothers.”
I was only slightly mad at Earl, even though he’d essentially called me a liar. I kind of liked the guy when I interviewed him. Plus, I thought his remarks were innocuous.
I also had the slightly uncomfortable feeling that I was benefitting from the whole thing by having my name splashed all over the media. My editors at Icon were even talking about sending me to interview a movie star. Hey, I thought, even a serious reporter can benefit from a good old-fashioned media shit-storm.
Of course, I hadn’t completely abandoned my environmental roots. I had asked Earl if he thought golf courses should be urged to use reclaimed water, but his answer hadn’t made it into the piece.
“Why not?” he answered. “Just don’t put the golf ball in your mouth.”
Right about now, I suspect that Earl may be wishing he put a golf ball in his own mouth, rather than make that joke about Scotland.
Esther Underwood sits under a striped umbrella next to the golf course at the Sheraton El Conquistador Country Club in Oro Valley, Ariz. Beyond the glittery green lies a postcard view of a nearby mountain range. It is a perfect 70 degrees here in the fastest-growing town in Arizona, where life is good and real estate professionals like Underwood are used to running the show.
“I no longer have respect for that woman,” says Underwood, speaking rather more gently than she has in screaming matches captured by local television cameras recently. “Nancy Young Wright is no longer devoted to her children. That’s not to say she’s a bad mother, but I think her causes have gotten away from her.”
Harsh words, perhaps, but Nancy Young Wright is getting used to it. Last year, shortly after her election to the local School Board, Young Wright became the snake in the suburban paradise of Oro Valley by opposing construction of a new high school in an ironwood forest that is habitat for the cactus ferruginous pygmy owl, one of the most endangered birds in the United States. Soon after she went public with her opposition, the school district was hauled into court by the Tucson-based Southwest Center for Biological Diversity, the environmental movement’s most aggressive young turks, and Defenders of Wildlife, a more staid Washington, D.C., group that has nonetheless been clear in its advocacy for endangered species.
The pygmy owl case is emblematic of the country’s ambivalence over its all-too-manifest middle-class destiny. The ur-suburb of Oro Valley may seem an unlikely focus for the nation’s most aggressive environmental group. But the Southwest Center was founded by children of an earlier incarnation of American suburbs. Peter Galvin, 33, grew up in Framingham, Mass., where he says America’s first mall was built practically in his backyard. “When I was little, we played cowboys and Indians in this forest,” Galvin remembers. “Then one day, a road was bulldozed. We threw bricks through the windows of the bulldozers and poured sugar in the gas tanks. But when the development went too far, we gave up.”
The culture that spawned the pygmy owl conflict is something new, though. Oro Valley is a self-sufficient island quite different from the Cheeveresque ‘burbs of the 1950s and ’60s. Here in the suburbs of the 1990s, no one, not even the male breadwinners, has to go to “the city.” Few of the moms work and the common denominator is newly achieved affluence. Oro Valley’s definition of paradise has six golf courses and about 25,000 people, and the average home price is $170,000. The harmony between developers and local government is symbolized by the fact that the street sign for Town Hall is on the same tasteful, color-coordinated frame as the signs for Estes Homes and U.S. Homes. Perhaps not surprisingly, 94 percent of the population is Anglo.
All the harmony makes the conflict over the pygmy owl more incongruous. In fact, the two women most visibly at loggerheads appear similar if you look at the mere facts of their lives. Underwood, a trim, 45-year-old real estate agent whose husband owns one of Arizona’s largest landscaping companies, is the daughter of Syrian immigrants who were “dirt poor” in Nebraska farm country. Nancy Young Wright, 38, is a refugee from the wide-open spaces of eastern New Mexico, arguably the last, worst place, an unreconstructed bastion of conservatism, cattle and hard times. They’re both happy with their ascent to Oro Valley; what differs is what they want to do here now that they’ve arrived.
By some accounts, the controversy isn’t about owls, but schoolchildren. The Amphitheater School District operates two high schools: Canada del Oro, nestled at the base of the high, stunning Catalina mountain range, and Amphitheater High School, located in a flatland working-class district of Tucson. Rapid growth has caused overcrowding at Canada del Oro High School, which district officials report is within 18 students of its capacity of 2,800. Yet the school offers a staggering range of extracurricular activities and families maneuver to send their kids there.
While Canada del Oro stuffs kids into portable classrooms, the less swank Amphitheater High School is down 500 students, according to district figures. Amphi High could be at least a temporary haven for kids who are bursting out of Canada del Oro’s seams. The problem is that Oro Valley parents don’t want to send their kids there. It’s a familiar story of class and ethnicity, but Arizona’s development boom gives it a modern twist. This was the epicenter of the savings and loan crisis, remember: The magnificently named Conley Wolfswinkel, a former associate of jailed Phoenix mega-financier Charles Keating and a convicted felon himself, owns one of Oro Valley’s biggest housing developments.
So the conflict over pygmy owls, schoolchildren, ethnicity and class is also about real estate. After plans for the new high school were leaked to the press in January 1997, the district’s real estate dealings came under scrutiny. Its real estate broker, Bill Arnold, a politically connected wheeler-dealer who had made more than $150,000 in eight deals for the district totaling $2.5 million, was criticized for paying above-market prices for the school land. He also was sued, unsuccessfully, for failing to get an appraisal for the high school site, a routine procedure required by most school districts.
And critics saw the school site as an attempt to foster what is called “leapfrog” development. As its original land base has been built out, Oro Valley has been aggressive about “annexing” new land — sort of like a hostile takeover by a municipality. It has approximately doubled in size since 1990. By building the school on the edge of Tortolita, a new town incorporated by anti-development environmentalists that Oro Valley is trying to annex, the district would be bringing in wider roads, more utilities — and, in short order, more development, say critics.
But the district has powerful allies. Republican Rep. Jim Kolbe ushered board members into a meeting with U.S. Fish and Wildlife Service chief Jamie Clark to assuage environmental concerns, and the new school began to look like a sure thing. But nobody bargained for national attention. Not long after the district-funded lobbying trip, the environmentalists sued. Tucson federal judge Frank Zapata ruled in favor of the district last May, citing the fact that a pygmy owl had been seen near the site, but not on it. Environmentalists appealed to the 9th Circuit Court of Appeals in San Francisco, which is expected to hand down a ruling any day now.
The School Board didn’t wait for its day in court. Last spring, despite the fact that the lawsuit was moving forward, the board ordered construction to begin. Bulldozers and cactus “movers” arrived at the school site, along with Esther Underwood and the Yellow Ribbon Mothers, pro-construction advocates who celebrated the groundbreaking with sparkling apple cider. When Nancy Young Wright arrived, she and Underwood got into a screaming match, and the pygmy owl controversy became the Battle of the Moms. Judge Zapata ordered the work stopped.
Now the school site, one of the densest stands of ironwood and barrel cactus in the Sonoran desert, stands like a monument to the ragged edge of sprawl. A dozen palo verde trees and saguaro cactuses — the huge tree-like cactus whose arms veer off in unpredictable directions — sit in wooden boxes as if ready to provide landscaping for a bank or shopping mall. The remaining 70 acres is still green and lush. Ironwood trees bloom purple in the spring and the security guard hired by the district sees bobcats cross the two-lane road in the early morning hours. To complicate matters further, another pygmy owl was reportedly spotted near the site after Zapata’s ruling. And while, again, the owl didn’t roost on the school property, the issue is preserving what little of the owl’s natural habitat is left so the species can be recovered.
The appeals court will decide the pygmy owl case any day now. But the district’s troubles are not over. If environmentalists lose, Peter Galvin of the Southwest Center plans to bring another lawsuit based on the recently sighted owl. The Southwest Center recently launched a much broader assault, suing to force the Army Corps of Engineers to require wetlands permits under the federal Clean Water Act from anyone developing near an arroyo. This suit could affect the majority of natural desert in the expanding Sunbelt and have an impact in wetlands throughout the country as well. It marks the first time the environmental movement has truly engaged the biggest issue of all: the expanding U.S. population’s effect on other species. And this is the ultimate zero-sum game.
As the sophisticated children of the suburbs gird themselves for a prolonged battle, Nancy Young Wright is caught in the middle, a lonely liberal agonizing over Esther Underwood’s latest charge: that she is just as reluctant as her neighbors to bus her daughter to the déclassé Ampitheater High School. “I just said that I’d have to ask my daughter,” said Young Wright, embarrassed by the implication that she, too, is part of the provincial snobbery of this newfangled suburb. As environmental decisions with great moral and philosophical import filter down to the backyard level, the personal becomes political in ways that 1970s feminists thought would be, well, extinct, by the millennium.
