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Sierra Magazine
Lay of the Land

Frontier Justice | Deep-Sixing | Republican Charm School | Standing Up for Brutality | Bigfoot Lives!

Frontier Justice

Western Republicans seek a new court of, by, and for the cowboys.

The purpose of the U.S. Circuit Court system is to provide uniform interpretation of federal law for every region of the country. Since the nine western states in the Ninth Circuit contain a large amount of public land, that court gets more than its share of environmental cases—and the welfare ranchers and timber barons of Marlboro Country are very unhappy with the way these cases are being decided. In recent years the Ninth Circuit has, for example, blocked new timber sales in old— growth forests through much of the Northwest to protect the northern spotted owl, upheld the right of citizens to sue under the Clean Water Act, and voided hundreds of damaging grazing leases on national forests in the Southwest.

Such decisions have led the "wise-use" group People for the West to accuse the court of "activist judicial malpractice." Senator Slade Gorton (R-Wash.) complains that the court is contaminated by a "California judicial philosophy" —presumably a pro-environmental one. Senator Conrad Burns (R-Mont.) fears "an increase in legal actions against economic activities . . . such as timbering, mining, and water development." Their solution is to create a new Twelfth Circuit, comprising Alaska, Arizona, Idaho, Montana, Oregon, Washington, and maybe Hawaii and Nevada. The once-mighty Ninth would be reduced to exercising its judicial philosophy over California, Guam, and the Northern Mariana Islands.

Mark Mendenhall, a spokesman for the Ninth Circuit, says that the would-be court splitters are "trying to get different outcomes in environmental and other cases." Proponents piously disavow any such intention. "In my view," wrote Burns in an op- ed column in the San Francisco legal newspaper The Recorder, "the fact that the Ninth Circuit is undeniably out of step with the rest of the nation is perhaps the least of the multitude of reasons to consider splitting this giant court." Oft- cited grounds include the district's enormous size ("No one court can effectively exercise its power in an area that extends from the Arctic Circle to the Tropics," claims Senator Frank Murkowski [R-Alaska]), the fact that the Supreme Court reversed 28 of the 29 cases from the Ninth Circuit it chose to review in the last term, and the court's formidable backlog of cases. Court defenders counter that modern transportation and communication make the district's size irrelevant; that five other circuits had a 100 percent reversal rate and that in two of the past ten years the Ninth's rate has been lower than the national average; and that cases are piling up because 10 of the court's 28 seats are vacant and the Senate is dragging its feet on confirming Bill Clinton's appointments. "It has become clear to me that the Republicans are not going to appoint another Ninth Circuit judge until the circuit is split," says Senator Dianne Feinstein (D-Calif.).

Feinstein is a member of the Senate Judiciary Committee, where anti­Ninth Circuit efforts over the past 20 years have traditionally been born—and died. The latest campaign, however, was launched from the Senate Appropriations Committee, whose chair, Ted Stevens (R-Alaska), is angry over a Ninth Circuit ruling favorable to Native land claims in his state. Despite the objections of House Judiciary Committee Chairman Henry Hyde (R-Ill.), California's Republican Governor Pete Wilson (who called a previous plan to split the court "environmental gerrymandering"), and the American Bar Association, a court-splitting measure attached as a rider to a Justice Department funding bill managed to pass the Senate. The legislation stalled in conference committee, however, and the court splitters were forced to settle for a commission that will study all federal circuit courts and issue a recommendation later this year.

The cowboys will be back then. Not since Franklin Roosevelt tried to pack the Supreme Court has there been such a blatant attempt to manipulate the judiciary for political purposes. Interpreting the Constitution, after all, is not supposed to be a regional matter. "There is not a western Constitution," says Senator Joseph Biden (D-Del.). "There is one Constitution." —Paul Rauber

Deep-Sixing Two-Strokes

Putting an end to the recreational oil spill.

When people think about toxic water pollution, they imagine a belching pulp mill or drunken oil-tanker captain. Worse offenders, however, are nearer at hand: Uncle Billy fishing out on the reservoir in his motorboat and his kids roaring around on their Jet Skis. The two-stroke motor that powers both is the workhorse of recreational boating. It's cheap, fast, and as dirty as can be. It is in fact (with the possible exception of storm-drain runoff) the primary source of toxic water pollution in the United States. And, with any luck, it will soon be putt-putting toward the scrap heap of history.

Two-stroke engines are amazingly inefficient. Powered by a mixture of oil and gasoline, they discharge a quarter of their fuel unburnt into the water, contaminating it with carcinogenic benzene and toluene. Their air emissions aren't much better: a by-product of burning oil is polycyclic aromatic hydrocarbon, one of the principal carcinogens found in cigarette smoke. According to the EPA, a 70-horsepower two-stroke operating for an hour releases as much hydrocarbon pollution as a car driven 5,000 miles. The amount of unburnt oil these stinkers put into our lakes, rivers, and drinking- water reservoirs every year is 15 times what the Exxon Valdez spilled. The crud from motorboats in Lake Powell alone amounts to a Valdez-size spill every two years.

In order to preserve its famous clarity, California's Lake Tahoe is banning two-strokes effective June 1999. (Washington's San Juan Islands are banning Jet Skis, but mostly because of their infernal racket.) Switzerland has outlawed two-strokes from Lake Constance, and prohibits their sale. As a result of the hard-won Clean Air Act revisions of 1990, the EPA entered into negotiations with marine-motor manufacturers on reducing their products' hydrocarbon emissions. The result was a weak compromise: a 75 percent reduction in new models by 2006.

Incredibly, the agency ignored an already existing alternative. The four- stroke motor is quieter and 40 times cleaner than the old two-stroke, and 7 to 10 times cleaner than the new two-stroke models on the drawing board. Four-strokes cost about 15 percent more, but the difference is soon made up by the fact that they get up to 4 times the gas mileage of their polluting cousins.

"The EPA is allowing these guys nine years to phase in a technology that's ten times worse than a four-stroke," complains Russell Long of the environmental group Bluewater Network, a coalition of boaters, fishers, and clean-water advocates. The feds call four-stroke motors a "revolutionary technology," he says, even though Honda has been making them for over 25 years.

Bluewater is taking up the battle where the EPA left off. While many California drinking-water reservoirs don't allow bathing for fear of bacterial contamination, Long points out, three-quarters of them allow recreational motorboating. Using California's Proposition 65, which forbids the discharge of carcinogenic chemicals into drinking water, Bluewater has filed suits against 30 outboard manufacturers, "personal-watercraft" manufacturers, and outboard rental concessionaires, demanding that they stop selling or renting conventional two-strokes in California.

Boaters and fishers who own two-strokes but don't want to pollute their lakes and rivers don't have to wait for the courts to settle things, however. If you "donate" your old motor to Bluewater and then scrap it, the nonprofit can offer you a charitable tax deduction, which you can apply to the purchase of a clean new motor. (Be sure to make arrangements with them before your trip to the dump.) Where else can you protect your family's drinking water and get paid for it? This charity begins at home.—Paul Rauber

Bluewater Network is a project of Earth Island Institute, 300 Broadway, Suite 28, San Francisco, CA 94133; (415) 788—3666;

Worse Things Could Happen

"The Sierra Club has become very, very powerful in the United States Congress."

—Anti-environmental Representative Helen Chenoweth (R-Idaho), at a September 1997 congressional hearing on the Sierra Club's proposal to restore Glen Canyon by draining Lake Powell.

Republican Charm School

" The good news," pollster Frank Luntz advises Republican politicians, "is that we have nowhere to go but up. The bad news is that it's a mile- long vertical climb and we're carrying a lot of baggage."

Last fall, in a lengthy memo to recalcitrant Republicans in Congress, Luntz lectured on how not to sound like an eco-thug. "Remember," he said, "even Republicans have limited faith in your ability to keep their air clean and their water clean. You have a lot to prove."

But instead of cleaning up the environment, Luntz prescribed cleaning up the lingo. "Stay away from risk assessment [and] cost-benefit analysis," he advises. "Your constituents don't know what those terms mean, and they will assume that you are pro-business rather than pro-environment." And puh-leez stop talking about "rolling back regulations," he said. "If we suggest that the choice is between environmental protection and deregulation, the environment will win consistently."

Other hints: Don't attack the EPA, which most Americans think is doing a good job. Say you support "a sensible environmental policy that preserves all the gains of the past two decades" (even if you voted against them). Talk about your "specific environmental concerns, whether they be forests, natural resources, endangered species, or whatever." Above all, " remember, you are arguing that Republicans have a better approach to solving environmental challenges, not that the environment is not a significant issue. "

And don't forget to smile. -Paul Rauber

Standing Up for Brutality

When TV viewers saw sheriff's deputies methodically swabbing liquid pepper spray on the eyes of anti-logging protesters in Northern California, most reacted with shock and outrage. An attorney for nine of the young victims called the use of the chemical during three separate incidents-two of which were videotaped-"the most torturous act I have ever heard of." But one man cheered the brutality. To GOP Congressman Frank Riggs, in whose office the protesters staged a peaceful sit-in in early October, "The victims in this incident were my employees." He accused the protesters of supporting Unabomber defendant Ted Kaczynski, and took the House floor to label them "reckless, wanton lawbreakers." He later called them "an affront to Gandhi and Martin Luther King."

The demonstrators, however, disavow sympathy not only for Kaczynski, but for violence in general. In all three sit-ins (the other two took place at the headquarters of Pacific Lumber Company, owner of embattled Headwaters Forest) activists were linked by locked metal sleeves. The videos show the mostly female protesters writhing in pain as the chemical is rubbed in their eyes.

A former cop and sheriff's deputy, Riggs is a fierce proponent of logging. He made the League of Conservation Voters' 1995 "Dirty Dozen" list, and wears his anti-environmentalism like a badge of honor. "Newt is greener than I am," he once bragged.

Gandhi and King, one suspects, are not resting peacefully. —B. J. Bergman

Bigfoot Lives!

We've all heard that Americans are living beyond their means. Now "ecological footprint analysis," a research technique invented by William Rees at the University of British Columbia, quantifies that fact by calculating just how much more of the world's resources Americans are consuming.

Given current lifestyles, Rees says, it takes more than 12.5 acres to create the materials and energy consumed by each U.S. citizen. Unfortunately, less than 7 acres of American soil is available per capita, and only 3.7 acres is available worldwide. Rees concludes that supporting the world's population in the manner to which Americans (and Europeans) are accustomed would require three more Earth-size planets. Rees and co-author Mathis Wackernagel have written a book, Our Ecological Footprint: Reducing Human Impact on the Earth (1996). It is available for $14.95 plus $3 shipping (U.S. dollars) from New Society Publishers, P.O. Box 189, Gabriola Island, British Columbia, V0R 1X0 Canada; (250) 247-9737.

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