Peter, Kieran, and Kieran’s girlfriend ended up all moving into a rustic cabin—no electricity, no heat, seventeen miles down a dirt road to nowhere—the sort of place that, in winter, you never knew if you were going to make it to your destination, or run into a snow squall that left you stranded. The car was always packed with food, water, and camping gear, just in case.
The cabin sat just outside Luna, New Mexico, in an area known as Centerfire Bog, with a view dominated by the distant 11,000-foot Escudilla Mountain. This is where Aldo Leopold learned to think like a mountain, and where the first officially protected wilderness area in the United States, named for Leopold, is located. It was stark and gorgeous and paradise to Galvin and Suckling, though they almost lost the cabin in a heated argument with the landlord on the issue of rent, which was seventeen dollars a month. Suckling said he had been told thirteen dollars, but for once he decided not to stand on principle (although in those days, having four dollars in his pocket was never a sure thing). They stayed there for the next five years, taking their first, tentative steps in creating a new sort of environmental organization. When Galvin explained his and Silver’s work on the endangered-species petition for the spotted owl, Suckling’s immediate response was, “Why just the owl? Let’s look at everything.”
This simple and now seemingly obvious thought—that five or a dozen or 100 endangered species identified in a vast natural region could have far more impact than just one owl—has been their guiding principle ever since. So the research began, in the field, at forest service offices and fish and wildlife stations, and at the University of New Mexico library. Kieran would hitchhike there, sleep in the bushes until the library opened, then spend the day poring over microfiche and congressional reports and dispatches from the forest service, as he and Peter built case after case, slowly, steadily, and overwhelmingly—biologically, legally, and politically. Suckling describes himself as an inveterate gatherer of documents and details—he has been building an immense database of species since those early days, before he had a computer, though now it resides on the laptop he carts everywhere, and he tweaks it many times a day. “Harnessing the power of OCD,” he says. Casual acquaintances often mistake this remark for a joke, but it’s not: He says he really is obsessive-compulsive.
The Greater Gila Region was and still is a sampler of threatened plants and animals, a situation exacerbated by the fact that the feds flouted the Endangered Species Act almost from the start, and no one had taken the trouble to complain. Suckling and Galvin began to assemble the information they needed for a passel of Endangered Species Act petitions, starting with one for the Southwest willow flycatcher, a small, rare bird with a distinctive trill—“fitz-bew”—that lives throughout southwestern desert streamside habitats. Saving the fragile riparian lushness that springs up around flowing water in the desert has been one of their longest battles.
Galvin next wangled a fish and wildlife contract to observe the desert-nesting bald eagle—a subspecies of America’s national bird whose population had dwindled. He would spend ten days in a birdwatchers’ blind behind a juniper tree, then take four days off, then return for ten more days in the blind, charting the eagles’ feeding and hunting habits and their technique of stealing food from other hunting birds. He witnessed their aerial courtship display, talons locking as the birds plummeted through the air. Galvin still ranks it, fifteen years later, as one of the most amazing sights he has ever beheld. Owing to overarching protections of bald eagles everywhere in the country, the desert-nesting eagle was safe for the time being, but Galvin’s research would be crucial in years to come, when the administration of President George W. Bush tried to remove all protections for the bird.
Other species they studied and would eventually seek to protect in this first flurry of activity included the cactus ferruginous pygmy owl, the northern goshawk (a ferocious hawk prized for falconry in medieval Europe), a parsley-type plant called the Huachuca water umbell, the Canelo Hills ladies’ tresses orchid, the Huachuca salamander, and the loach minnow and spikedance—two fish which had already been listed as endangered, but which were receiving no habitat protection. There were 150 species in all on their list, each threatened by timber sales, developments, or road projects of one sort or another. It took more than two years to assemble the information, and they figured that those plants and animals would be enough to fuel a decade of litigation, with petitions filed serially to keep the government off balance. The cases would reach far beyond the Gila’s boundaries, because many of the species also existed elsewhere in the country. Even then, in their cabin off the grid, they were laying the groundwork for a national, not a regional, environmental organization.
They would earn meager salaries during the summers on the owl crews and then, when the hooters were idle, survive on unemployment insurance and occasional grants from Robin Silver, allowing them to continue their research. Suckling used some of his old engineering talent to jury-rig a solar panel to power a fax machine—this was before the ubiquity of e-mail—and that became their primary link to the outside world. From the fax, their first environmental alerts and announcements went out to the press and to a tiny donor membership they had assembled by 1992 for their two organizations at the time: Galvin’s Friends of the Owl and Suckling’s Greater Gila Biodiversity Project.
The forest service’s original goal for the hooters was to find as many owls as possible, because this would mean that little or no conservation effort was needed. The forest service could continue business as usual, allowing private timber companies to purchase cut-rate logging rights in publicly owned forests, and all would be well. But when the hooters could find barely any owls in the vast forest, the goal changed: Finding no owls would mean logging could proceed. Timber sales in national forests would be blocked only in areas where owls were found. The birds needed many acres of dense conifers and undergrowth in order to protect their nests, seek out their prey, and hide from other predators. So whenever the survey crews found a mating pair of owls, a 2,000-acre circle was supposed to be drawn around its nest, and that area would, for the most part, be off-limits to logging or other disruptive activities. No owls in a tract the timber companies wanted meant nothing was in danger, and therefore the chain saws could fire up.
Somehow, Suckling and Galvin found, the deck kept getting stacked against the owls: The hooters’ reports of owl sightings were downplayed, explained away, or ignored. The logging would continue, even when they found an owl in an area slated for a timber sale. With only a few thousand Mexican spotted owls believed to be still alive, such cavalier decisions infuriated Suckling and Galvin. But when they complained to their supervisors, they were told to mind their own business. Their job was to hoot. Their superiors would handle policy.
Then, during a visit to a forest service office in Albuquerque, a sympathetic staffer mentioned that he had been looking over a map that showed known spotted owl nests in each of the eleven national forests in the Southwest—more than 900 nests. The map was carefully kept from the public; Suckling and Galvin knew it would be a gold mine of information for them. The staffer showed it to them for a moment, then left it sitting unfolded on his desk. An unspoken understanding passed between him and the two hooters. “Well, it’s time for my lunch break. I’ll be gone about an hour.” And he walked out, leaving them alone in the room with the map. They raced to a copy shop, then returned the original; the map, which would be useful for years, told them the forest service had routinely lied when it claimed that areas being logged contained no owls.
The research-underwritten-by-government phase of their work was about to end, along with their hooting, as an inevitable conflict arose between their roles as agents of the government and their position as activists who disagreed with pretty much everything the government was doing in the forest. The impetus came one hot, moonless summer night when a member of the crew got lost in the dark, and wandered into the wrong canyon. All the others had been coming up empty in their appointed areas, their hoots bringing no replies, no sounds of silky wings in the night air, no eyes gleaming in the darkness high in the trees. But the hooter in the wrong canyon found an owl staring back at her with its big round eyes. The next morning, they all pored over maps, trying to figure out where the owl had been, until Suckling jabbed his finger at the spot: “Oh my God, you were in Water Canyon; this is the Water Canyon timber sale.” The others stared at him. Water Canyon was going to be one of the biggest sales of public forest timber in the southwestern United States. “That owl is going to be worth millions of dollars in lost timber profits,” Suckling said. Clearly, this prospect did not upset him in the least.
It was a Sunday morning. Galvin called the forest supervisor on duty and said, “You’ve got to stop the sale,” then explained why. And the supervisor, to his credit, followed the law and halted logging. But on Monday morning, his bosses reversed the decision and said that the logging in Water Canyon would go through as planned. The allotment had already been sold. When Suckling and Galvin complained, the senior supervisor said, “Look, you should have found that bird sooner. We sold it; they get to cut it. It’s too late.”
“Well, I understand how the timber company might think that,” Suckling responded, “but the thing is, that’s illegal. You can’t just make up a rule like that. If there’s an owl, you can’t cut.”
But the supervisor wouldn’t budge. Despite the unambiguous language of the regulations, he insisted, “You’re too late.” It was clear the priority was to treat national forests like tree farms for the timber industry. To be fair, this attitude had contributed to the initial creation of the national forest system in 1891, and explained why it was controlled by the Department of Agriculture (whereas the Department of the Interior controls national parks). But conservation was also a critical goal of the forest system, and in the subsequent creation of the U.S. Forest Service by the nation’s greatest conservationist president, Teddy Roosevelt. In the Gila, Galvin and Suckling decided, the forest service had lost sight of this part of its mission. So they had a choice. They could shut up, bide their time, and keep making a meager living conducting owl surveys while they continued their species research on the side. Or they could go full time into the nonpaying business of saving species from extinction. Suckling told his partner, “It’s time to put out our flag,” and Galvin agreed. They drew up a map of the owl location in Water Canyon, brought it to a local newspaper, allowed themselves to be quoted on the record notwithstanding a nondisclosure agreement they had signed to get their jobs with the owl survey, and amid considerable press attention, the forest service had no choice but to cancel the big timber sale. It also canceled Suckling’s and Galvin’s jobs as hooters.
The time had come to put their stacks of files and long months of research to work. First one, then a couple, then a flood of official filings flew out of Centerfire Bog: petitions for listing threatened and endangered species, formal notices of intent to sue, demands for setting aside critical habitats, and objections to a host of timber sales, zoning variances, and road projects, aided by the secret government map of owl nests. Every time the forest service published the required public notice of a proposed timber sale, there would be Suckling and Galvin with their sheaf of papers explaining why it would be illegal to touch a single one of those trees because of an owl, a flycatcher, or some plant no one had heard of before. It was as if a dam had broken; two years of research, frustration, and trying to work within the system were giving way.
Soon they became notorious in their adopted home, Catron County, which happened to be a ruggedly beautiful environment, but also one of the most hostile locations for environmentalists in the country. Catron County had become the unofficial capital of the Wise Use Movement,1 a green counter-initiative that sought to temper Suckling’s and Galvin’s brand of “keep it wild” environmentalism with policies emphasizing the economic benefits of private enterprise on public lands. Catron County politicians had tried to repeal federal environmental regulations, to seize federal lands, and to force environmentalists to register like sex offenders. Suckling and Galvin received threatening letters; their tires were slashed; a car window was smashed. Someone defecated on Suckling’s car in a restaurant parking lot. Although a few residents discreetly slipped them contributions now and then, others made it clear that they didn’t appreciate two outsiders coming to the Southwest with their East Coast attitudes, trying to put the forests in a sort of lockbox. “They’re trying to shut down the West,” one angry rancher said at the time. “That’s the agenda—locking it all up.” Suckling and Galvin responded by changing their letterhead to feature a padlock as a logo, accompanied by the phrase “Two Guys from Massachusetts.”
The Albuquerque Journal ran a front-page profile of the two in September 1993—the headline, “Going for the Throat,” was based on a quotation from Galvin about “going for the jugular” in environmental cases. The newspaper put their bearded, shaggy visages on page one, too. They later found that the front-page photo had been clipped out and posted on a bulletin board at the Catron County courthouse. Someone had drawn a bull’s-eye over their image. The forest service officials no longer treated them as an unimportant nuisance but perceived them as a genuine threat, and they were not above using a few guerrilla tactics in order to further that impression. One Thanksgiving Day they spent several hours faxing dozens of files—a notice of intention to sue and supporting documents—to a forest service office, just so officials would come in the next day and see that their opponents were going after them even on a holiday. “Nothing like getting up in the morning,” Galvin told reporters at the time, “and knowing you’ve raised the forest supervisor’s blood pressure fifty points.”
Their weapon of choice in those early days was (as it is today) the Endangered Species Act of 1973. No other organization has used it more often—or pushed its mandate so far, beyond merely protecting individual species to rescuing and preserving whole forests, marine ecosystems, oceans, rural landscapes, and, if the center’s strategists have their way, the global climate. Whether such an expansive application of the Endangered Species Act is cause for celebration or condemnation has long been a matter of debate and the subject of years of litigation. But few on either side doubt the act’s potential for changing the world, one way or another, which is why it has endured, and why it has made so many enemies. Admirers worldwide call it the most powerful and effective environmental law ever conceived, the crown jewel and also the pit bull of the environmental movement. Warren Burger, the conservative chief justice of the United States, writing the majority opinion in 1978 when the Supreme Court elevated survival of the lowly but endangered snail darter fish above a multimillion-dollar Tennessee Valley Authority dam, called the act “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”2 It was created to do one thing single-mindedly—protect wildlife from unnatural extinction, which in essence means protecting wildlife from man—and to make that mission secondary to no other consideration. The works of man—his factories, his dollars, his bulldozers and chain saws—all must give way when extinction is on the line. This priority is justified, Chief Justice Burger explained, because a road or a truckload of logs or a dam has a specific dollar value that can always be replaced or spent elsewhere, whereas the value of an entire species is “incalculable.” Once a species is gone, it’s gone forever. The act, then, was crafted as the legislative embodiment of the “precautionary principle,” designed to err on the side of protection. (By contrast, most government programs—the Food and Drug Administration, for instance—are designed in many cases to err on the side of commercial interests. That is one reason so many harmful drugs over the years, from thalidomide to Vioxx, have been initially presumed safe for public consumption, only to be recalled amid episodes of birth defects and deaths.)
This precautionary approach has worked for endangered species. A majority of the plants and animals placed on the endangered list for more than ten years have recovered or stabilized, and almost all have avoided extinction. The longer a species has been listed, the better it has fared—that is why most recovery plans for endangered species last forty-two years or more. On average, those species listed in the early days of the law (or under its more limited precursors) have been the most successful of all; they include the bald eagle, recovered from a low of 417 mating pairs to 9,789; whooping cranes, recovered from fifty-four to 513 birds; and the gray whale, which doubled its population in thirty years, to more than 26,000. Of the more than 1,800 species listed under the law as endangered or threatened, only nine are known to have gone extinct once officially protected. The National Research Council estimates that at least 165 currently living species would be extinct now without the act’s protections.
The Endangered Species Act is by no means universally admired, however. It is reviled in some quarters as an abusive and unreasonable regulatory burden that interferes with private property rights and the sensible administration of public lands—all to protect a few bugs, weeds, or tiny fish no one has ever heard of or would ever miss, as detractors see it. They believe that the cattle, mining, and timber industries ought to have ready access to public lands; that jobs and human rights ought to come first; and that the Endangered Species Act therefore poses an unacceptable and unnecessarily extreme bar to development and commerce. The law’s most vocal critic, Richard Pombo of California—rancher, six-term congressman, real estate developer, and advocate of radical property rights—built his political career running against the Endangered Species Act as if it were a living, breathing campaign opponent, repeatedly attempting to gut its protections. Pombo, who was renowned on Capitol Hill for his black Stetson, his ostrich-skin cowboy boots, and his close ties to the disgraced former House majority leader Tom DeLay, also tried to open up the protected arctic wilderness to oil drilling, sought to bankrupt the endangered-species budget by forcing government to pay individual property owners millions to protect imperiled species, and proposed selling fifteen major national parks for private development. His inaptly titled legislation, the Threatened and Endangered Species Recovery Act, would have ended all species habitat protections by 2015, replaced scientists with political appointees in deciding which species to list, and required taxpayers to pay corporations hundreds of millions of dollars just to obey the Endangered Species Act—the equivalent of paying drivers to wear seat belts. The bill passed the House but stalled in the Senate as the Center for Biological Diversity led a huge media and lobbying campaign to expose the effects of the innocuously named legislation. It finally died once voters ousted Pombo—and the Republican Party’s congressional majority—in 2006.
It is safe to say that if the Endangered Species Act had been introduced in Congress in the political climate of the early twenty-first century rather than in 1973, it would have no chance of passing. Yet it was utterly noncontroversial and nonpartisan when it passed, viewed as moderate and middle-of-the-road. It was cosponsored in the Senate by a group of Democrats and Republicans; it passed on a unanimous Senate vote and with only four “no” votes in the House; and it was signed by President Richard Nixon, a Republican who lavishly praised the law and his program of companion ecological measures as part of an “environmental awakening,” a “commitment to responsible partnership with nature,” and a rejection of “cavalier assumptions that we can play God with our surroundings and survive.”
The act revolved around a few simple ideas few found objectionable: Americans cherished nature and did not want animals to become extinct; therefore, it should be illegal to kill endangered species or destroy habitats critical to their survival. The near extinction of America’s national symbol, the bald eagle, helped galvanize politicians into taking this action, and they were also impelled by a growing environmental movement that brought 20 million Americans to rallies on the first Earth Day, April 22, 1970. An unprecedented wave of environmental laws then swept through Congress: an improved Clean Air Act, the Clean Water Act, the National Environmental Policy Act, the Marine Mammal Protection Act, the creation of the Environmental Protection Agency, and the Endangered Species Act. Nothing like them had ever been passed before, and nothing like them has been attempted since.
The effectiveness of these laws depends on their enforcement by the president and his cabinet and agency heads, and performance in this regard since 1973 has ranged from uneven to unenthusiastic to lax to downright hostile, depending on who has occupied the White House. The author of the Endangered Species Act, Senator Harrison Williams of New Jersey, anticipated that, once the rosy glow of doing something good for the environment had passed and the self-congratulatory press conferences were forgotten, there would be great reluctance within government to rigorously enforce environmental legislation whenever high-minded principles collided with the interests of powerful corporations. Inevitably, it would be argued that jobs, the economy, and the interests of hardworking citizens were being made subservient to a few scrawny owls. Elected officials and their appointees would find it hard to resist the temptation of ignoring the act’s provisions. This is why the Endangered Species Act, like several of the other environmental laws adopted during that era, grants general “standing” to any U.S. citizen anywhere in the country to petition and sue the government over any endangered species anywhere. The goal of this unusual provision—most laws do not permit such broad standing—was to sweep away legal and technical obstacles to holding government accountable. Although it has been criticized as “government by litigation,” the record of how and why species have been put on the endangered list makes it clear that the list of protected species would be a great deal shorter, and the list of extinctions a good deal longer, without the citizen-suit provision and the power of court orders. When the Senate voted unanimously for the act in 1973, this was what was intended. The forest service hates it. The Center for Biological Diversity lives by it.
Yet, for all the power of the Endangered Species Act to hold government’s feet to the fire, the first sixteen years of the act’s existence saw relatively little use of the citizen suit. Its most famous early invocation was the case of the Tennessee Valley Authority dam in 1978—a case that the snail darter won and the Tellico Dam lost, until an amendment to an unrelated bill cleared Congress and exempted the project from the Endangered Species Act. More than a decade would pass before the next big battle was waged in the Pacific Northwest—the effort to protect the northern spotted owl, a relative of the bird Suckling and Galvin wanted to save. That court battle also curtailed logging, but it created enormous controversy, a backlash, and ill will, as the Pacific Northwest timber industry was much bigger, more powerful, and employed more people, than the industry in the southwestern forests. The northwestern timber industry had been declining for many years, largely because of overseas competition, but environmentalists became a convenient scapegoat for the industry’s woes and for workers with no jobs. Spotted-owl dolls were hanged in effigy at sawmills, and bumper stickers proclaiming such sentiments as “I Love Spotted Owls—Fried” became commonplace. The perceived enemies were those damned environmentalists with their lawsuits.
Mainstream environmental organizations had almost always made their greatest strides—such as the campaign against dams in the Grand Canyon—not through lawsuits but through lobbying and public appeals. That was thought to be the best way to build broad support for environmentalism, working within the system rather than suing it, and the legal battles in the Pacific Northwest and the rising tide of antienvironmentalism they engendered seemed to reinforce this notion. But 1981 brought a change. From the start of his presidency, Ronald Reagan sought to cut environmental regulations as part of his overarching disdain for government; and his department heads simply stopped enforcing those laws he lacked the power to eliminate. Reagan wore his antipathy toward environmentalism like a badge of honor. He told America, “Trees cause more pollution than automobiles,” an outrageous lie. He also opined, “You’ve seen one redwood, you’ve seen them all”; this is probably why he put a timber executive in charge of national forests.
The leader of Reagan’s attack on environmentalism was James Watt, his first secretary of the interior, one of the legal thinkers behind the Wise Use Movement. Watt openly despised the Endangered Species Act and refused to list a single endangered species for 382 days straight—a record that would endure for a quarter century.
Watt’s fiery two-year tenure consisted of a string of cuts in environmental funding, enforcement, and regulations, and corresponding policies to open up public forests and lands to oil and gas exploration, grazing, and development. In 1983, when he was criticized over a controversial decision to sell a billion tons of coal to be strip-mined from public lands, he attacked the composition of a federal coal advisory panel by saying, “I have a black, a woman, two Jews, and a cripple. And we have talent.” Watt was forced to resign in the wake of that remark. A few years later, he let his unvarnished feelings about environmentalists be known in a speech before the Green River Cattlemen’s Association in Pinedale, Wyoming: “If the trouble from environmentalists cannot be solved in the jury box or at the ballot box, perhaps the cartridge box should be used.”
Endangered species listings picked up again when the first President Bush took office, and more so under President Bill Clinton (who holds the record for listing endangered species: 527 in two terms). But Reagan’s and Watt’s influence remained strong in the forest service long after they left office. The affable Reagan, master of the pleasingly false anecdote, who described Watt as an “environmentalist” in the same way he asserted that trees caused forty times more pollution than cars, had succeeded in recentering American politics to suit his right-wing preferences, making what had been considered a politically moderate idea at the time of its enactment—the Endangered Species Act—seem like a creature of the radical far left. Environmental organizations, desperate and dispirited in this political climate, sought to compromise and placate, hoping to hold onto some of their past gains and weather the storm. The in-your-face, take-them-to-court strategy of the Center for Biological Diversity made other organizations nervous. Even Washington, D.C., attorney Brock Evans—a stalwart of the Sierra Club and Audubon Society who had fought to save the parks and forests of the Northwest—wrote to the center and suggested Galvin and Suckling back off from their lawsuits to avoid the ire of the powers that be.
They politely told him to forget it (and Evans later said they were right to do so). As Galvin sees it, 90 percent of America’s wilderness has been used up, with no concern for extinctions and without compromise. “Now that last ten percent of American wilderness has some protection, and they suddenly want us to compromise so they can use it up, too? I don’t think so.” Suckling offers a pointed metaphor: “This is how we should all be looking at the extinction crisis—Your house is burning down. Do you want a fireman who stops on the way in to cut a deal to save part of your house?”
Suckling and Galvin had decided to turn Watt’s advice on its head: For environmentalists, the cartridge box was not an option, and the ballot box had stopped working, so the jury box—or, more precisely, the judge’s bench—was the only way left to go. The Endangered Species Act had been waiting for years, and though petitions were filed here and there by other groups, the Center for Biological Diversity was the first to systematically bombard the government with petition after petition, suit after suit, until finally its priorities became the government’s grudging priorities as well.
The two former hooters launched a flurry of cases in the early 1990s, but the first one to work its way through the long pretrial process and catch fire involved the bird that had started it all, the Mexican spotted owl.
After a four-year delay, Fish and Wildlife had finally ruled in favor of Robin Silver’s old petition and put the owl on the endangered list in 1993, but with no protection for its habitat—the forests where the spotted owl nested were still being heavily logged. To Galvin and Suckling, this was an intolerable oversight, as if a government engineer saw a bridge about to collapse but took no action to shore it up. It taught them that there was never a final victory in these cases: You had to get a species listed; then you had to sue to have its habitats preserved; then you had to sue again when the protection was insufficient or the government tried to reduce it. Galvin and Suckling had merged their two groups, Friends of the Owl and the Gila Biodiversity Project, into the regional Southwest Center for Biological Diversity, with the third cofounder and financial backer, Robin Silver, as chairman of its board of directors. But the center had no lawyers on the staff (and, at that time, no staffers other than themselves), so they had to recruit environmental attorneys who would donate their time in the hope that, if they won, the government would be ordered to pay their fees. A single species could require years of litigation, so it was just luck that the spotted owl ended up breaking first.
The case began when Silver, Galvin, and the volunteer attorney, Mark Hughes of the Denver firm EarthLaw, met with officials of the U.S. Fish and Wildlife Service to see what would happen next in the quest to save the spotted owl from extinction. The three environmentalists wanted to know why the critical habitat areas the birds needed had not been set aside. It would take more than just drawing circles around nests—substantially larger, continguous areas had to be set aside for the owls to inhabit, Galvin, Silver, and Hughes argued. Each time the owls nested and had young, the juvenile birds would be ousted from the parents’ territory and they would have to find their own 2,000 acres for hunting, mating, and nesting. Like many birds, spotted owls are intensely territorial, even with their own offspring. The people at the fish and wildlife service understood this, but said they were helpless to do anything about it. That was up to a separate agency, the U.S. Forest Service, which had no interest in setting aside vast areas of forest for the spotted owl.
After the meeting, the activists and their attorney realized they had hit pay dirt. When it came to endangered species, the forest service was required to defer to the fish and wildlife service, not the other way around. The problem was that the two agencies weren’t consulting with each other, as required by the Endangered Species Act. The fish and wildlife service was supposed to make a scientific finding—a written “biological opinion”—that would assess how logging and building in the national forests would affect the spotted owl. With this opinion, a comprehensive protection plan could be crafted. Without it, trees were being cut down in great numbers in the national forests, and no one had any idea how this was affecting the spotted owl. In short, they had a slam-dunk legal winner, because each day that went by, the feds were breaking the law.
In December 1993, they filed the required notice of intention to sue the U.S. Forest Service, beginning a ritual that was new to them at the time but would become a regular pattern of events in the future. The notice triggered a mandatory sixty-day negotiation period, but the forest service took no action to settle matters. As promised, they filed suit, and the following June, a prominent jurist in Phoenix, Arizona, U.S. District Judge Carl Muecke, ordered the fish and wildlife service to follow the law and designate a critical habitat for the spotted owl. Had the agency done as the judge instructed, the case would have ended then and there, with habitat preservation for the spotted owl that would probably have been far more limited than Suckling and Galvin desired. But federal wildlife officials in Washington, D.C., did not do as they had been instructed, apparently unimpressed by the two bearded activists living in an unlit cabin and the yokel judge out in the desert. Suckling and Galvin soon received an anonymous packet of memos from their old sources inside the government, and those memos made it clear that the agency had no intention of setting aside critical habitat in any of the southwestern forests.
In short order, those memos were presented to the judge. Suckling and Galvin, like most attorneys in Phoenix, knew something that their Washington-based opponents apparently didn’t appreciate: You don’t mess with Judge Muecke. He was a no-nonsense ex-Marine who had served in the OSS during World War II. Muecke hunted down Nazi war criminals. He personally arrested Hitler’s filmmaker, Leni Riefenstahl. He participated in the liberation of the concentration camps at Dachau and Buchenwald, where he saw firsthand the starvation and abuse of the living, and the mass graves and the ovens that had consumed the dead. The experience transformed him into an impassioned civil libertarian, a legendary liberal in a conservative state, a judge who did not defer to governors, congressmen, or presidents, much less bureaucrats—all of whom he had angered at one time or another. Those memos, as Suckling recalls it, left him “royally pissed.”
In August 1995, Muecke issued an injunction that banned all logging in the eleven national forests of the Southwest until the forest service and the fish and wildlife service came up with a legitimate biological opinion on logging and its effect on the spotted owl. The governor of Arizona at the time, Fife Symington III (who was later forced to resign after being convicted of bank fraud), railed against the judge, with whom he was already feuding over prisoner-rights lawsuits. Hundreds of loggers drove their semis to Phoenix and surrounded the courthouse like a raiding party, blowing their air horns and blocking traffic. But the forest service had caused the delay, not the judge, and nine more months passed before a document labeled “Biological Opinion” was finally filed. It contained a great deal of information, none of which had anything to do with biology or habitat; it focused instead on an economic analysis of how the timber industry might suffer because of owl protections. Muecke rejected the report.
A second biological opinion appeared and was rejected for similar reasons. Then in July, after a year under the logging injunction, the forest service issued a press release announcing that logging was going to resume immediately in the southwest forests. The regional forester, Chip Cartwright, then one of the most powerful forestry officials in the country—who had also been in charge of ecosystem management for all national forests—had filed yet another biological opinion. He faxed it to the judge late on a Friday, after court had adjourned, and said that he had fulfilled the conditions the judge had set for lifting the injunction. The new biological opinion, to no one’s surprise, found that the spotted owl faced no danger from continued logging operations. Cartwright called the supervisors of all the forests and told them to get the timber companies back to work.
However, the judge had not approved of this action—the forest service had acted unilaterally. Muecke was furious, ordering an immediate stop to the logging and summoning Cartwright to the courthouse in Flagstaff, near his home, where the judge was recovering from surgery. Cartwright was facing potential contempt of court charges; someone suggested he might want to bring a toothbrush. At a secret hearing, the judge looked him over and asked why a defendant in a court case felt he had the power to declare the case over and to lift an order of the court. “I have never run into that in my whole life,” the judge fumed. Cartwright avoided a contempt citation, but the injunction remained in effect for the rest of the year, as Muecke ordered the parties to lock themselves in a room and work toward a settlement.
This was what Suckling and Galvin had been waiting for: with feds on the defensive, a judge who was one affront away from jailing the director of all southwestern national forests, and logging at a complete standstill in their beloved Gila, they would be locked in a room with their opponents—forest service guys who would have crossed the street to avoid bumping into the bearded enviros on the sidewalk. The goal was to wear them down and it finally worked. On day five of the settlement talks, as Suckling and Galvin recall, one of the Department of Justice’s senior lawyers sent in from Washington, D.C., to negotiate apparently reached his breaking point. He abruptly stood up, a strange look on his face, and walked almost robotically around the conference table and grabbed the attorney, Mark Hughes, attempting to throttle him, breaking his glasses in the process. Galvin and Robin Silver, who was the “client” in the case, leaped up to restrain the government lawyer. Later, the official story was that the justice department attorney had “bumped” Hughes, to which the environmental attorney agreed, but only if the term “bumped” included wrapping hands around someone else’s neck. The case settled the next day and the center had its first big victory. The forest service agreed to a Mexican Spotted Owl Recovery Plan in all eleven regional forests. The owls would have 4.6 million acres of critical habitat. Logging could resume, but in a much reduced form—always secondary to the health of the owl and other species in the woods.
Suckling and Galvin returned home in triumph, only to be evicted from their cabin in Centerfire Bog. They were too hot to handle, their landlord told them sadly. He didn’t want to evict them, but he had to live in that community, which was less than thrilled with the outcome of the spotted owl case.
After a stint in Silver City, New Mexico, they moved to Tucson and soon dropped the word “Southwestern” from the name of the center, eager to build a national organization and reputation. The federal government unwittingly helped by keeping the spotted owl in the headlines, continually cheating, attempting to revise the settlement, and outright disobeying court orders to protect owl habitats. By the time the government was done irritating various judges and appeals courts, logging and cattle grazing in the southwestern forests were greatly curtailed, and the protected critical habitat for the spotted owl had been nearly doubled, to 8.6 million acres.
“We effectively ended the timber industry in the Southwest,” Suckling boasts. “And it was their arrogance that did them in. They could have settled things at the beginning, and we never would have gotten where we are today. They never saw it coming.”
Today the Center for Biological Diversity occupies a large and somewhat cluttered office inside a former market, which the staff must vacate one month a year when the landlord reclaims the premises to participate in Tucson’s annual gem show. Kieran Suckling and Peter Galvin consider this a good deal, however, because the place comes rent-free the rest of the year, and includes some impressive, if rather dusty, giant purple crystals that are too heavy to move. It’s also a hard place to find if you don’t know where to look—as a safeguard against walk-in hotheads, they’ve never put up a sign or a logo for the center. The parking lot in the rear is unmistakable, however: the prevalence of bumper stickers featuring the word “save,” followed by some critter or natural landmark, is a clear giveaway. Inside the converted market are groupings of couches and coffee tables, a small kitchen, a library, a warren of desks with low dividers in the cavernous main area of the building, a suite of offices and meeting rooms to one side, and a steady buzz of activity throughout as staffers pursue their diverse petitions, lawsuits, campaigns, fund-raising calls, and media contacts, often long into the night.
In terms of its reach and staff, the center has come a long way from its first incarnation as two guys and a solar fax machine at Centerfire Bog. Within two years of moving to Tucson, Galvin and Suckling had assembled a (barely) paid staff of sixteen and an annual budget of about $400,000, much of which came from grants from Doug Tompkins and Ted Turner. But they pulled in $100,000 from the center’s 4,000 members (up from a mere 250 members three years earlier). Almost the entire budget was churned into litigation costs, campaigns, publicity, and scientific studies; the staff pay topped out at $350 a week for Suckling, the executive director, with the overall average salary at $250 a week. A substantial number of staffers lived at the center for extended periods; the combination campsite-commune-crash pad ambience even included Galvin’s old tepee in the backyard, though the center gradually became more of a professional operation as the wages slowly evolved into low but livable salaries in exchange for exceptionally long hours.
Each year since then, the center has grown steadily and extended its reach. By 2008, it had filed more than 500 lawsuits and won about 90 percent of them. It has won first-time protections for a total of 350 species, 70 million acres of critical habitat, and tens of thousands of miles of river.
Now it maintains a law office with about twenty lawyers, biologists, and a support staff in San Francisco—home to the federal trial and appeals courts most favored by environmentalists—along with satellite offices across the country in Washington, D.C.; Los Angeles, San Diego, Sacramento, and Joshua Tree, California; Phoenix and Prescott, Arizona; Silver City, New Mexico; Missoula, Montana; Portland and Bend, Oregon; Chicago; Duluth, Minnesota; Carencro, Louisiana; and Richmond, Vermont. The center’s increasingly active and high-profile climate-change and oceans programs are based in the Mojave Desert on the edge of Joshua Tree National Forest, where the two attorneys who run those programs live in a solar-powered house—and have built a reputation as two of the leading global-warming litigators in the nation. The center’s revenue has grown as well, reaching a new high of $6 million in 2007, with expenses just over $5 million—a 50 percent increase over the previous year. Benefactors include the center’s 40,000 individual members, the musician Bonnie Raitt, and the Swiss medical device magnate and eco-philanthropist Hansjörg Wyss, whose pledge of $10 million over five years (the most generous donation the center has yet received) is largely responsible for its recent budget bump.
The center still receives considerable scorn and criticism. Fifteen years later, the spotted owl case still remains a sore spot in the Southwest—as many as 3,000 jobs were lost and several timber mills were shut down because of the reduction in logging the center achieved. And the center’s latest campaign to exclude all-terrain vehicles from a large percentage of public lands, because of their destructive impact on habitats—a campaign funded with a grant from Doug Tompkins—has aroused considerable venom in the western states, where off-road recreation is common, its supporters are vocal, and the industry is a powerful force. When the Tucson Citizen newspaper published a profile of the center (the story described an organization that “brandishes the Endangered Species Act like a blunt force instrument”), the paper’s Web site received a flurry of comments, almost all of them negative. “These people would have us living in caves and eating berries but only after the animals got their share,” one reader commented. A self-described environmentalist offered this comment: “They are radical and rarely part of the solution…. They prefer the fight and to have their own little empire to puff their chests up.” Another commenter wrote, “These people love rodents, bugs, and birds more than people. Such inhumanity ought to be mocked…. That’s why I say pass the owl. Anybody got any good BBQ sauce recommendations for endangered red squirrel?” And there was considerable cheering among readers over a successful defamation suit against the center by the Arizonan rancher James Chilton, who had been profiled in the Wall Street Journal after winning a $600,000 judgment in the case.
A jury in Tucson found that photos posted on the center’s Web site painted a false image of alleged environmental damage on leased public lands at Chilton’s cattle ranch, which actually were lovely and verdant. The photographer hired by the center had been in error. The center argued that the photos were public records, but the state appeals court found that argument to be untimely and upheld the verdict in December 2006. The cattleman, who is also an investment banker in Los Angeles and the husband of a controversial official in the Arizona fish and game department, blasted the center as an extremist, radical organization that wanted to drive ranchers off public lands and out of business. “I had been attacked, attacked, and attacked,” Chilton later said. “I had to decide if I was a wimp or a cowboy. I stood up, I cowboyed up like a cowboy should.”
Environmentalists, despite occasional squabbles and leeriness about the center’s no-holds-barred tactics, tend to be more complimentary, describing the center as a positive force, and crediting it with pushing concerns about endangered species to the forefront of the conservation movement. Peter Bahouth, the former director of Greenpeace, former head of the (Ted) Turner Foundation, and now director of the U.S. Climate Action Network, called the center “fearless,” adding, “They have done more to protect nature and hold the government accountable than organizations with ten times their resources.”
The center’s growth accelerated following the inauguration of George W. Bush, by any objective measure the president most hostile to environmentalism in U.S history. In the absence of congressional oversight or the wholesale intervention of larger, mainstream environmental groups, the center became one of the few consistent checks on Bush administration officials who seemed determined to scuttle environmental laws, alter the science behind them, or simply ignore both and dare anyone to challenge them.3 The center’s investigations and courtroom victories repeatedly embarrassed the White House, as when the center exposed and sued the administration for improperly shelving endangered species on a waiting list called “warranted but precluded”—a legal limbo that has trapped 286 endangered species without providing them any protection. At least twenty-four of the wait-listed species have since gone extinct.
In 2005, the center led a national media and lobbying campaign that stopped Richard Pombo, Congress, and the White House from gutting the Endangered Species Act. A lawsuit brought by the center forced the Bush administration to produce a congressionally mandated scientific report on the impact of climate change; due in 2004, the report was finally made public in 2008, with conclusions that contradicted most of the president’s statements and policies on global warming. Then, with twelve state attorneys general and a group of environmental organizations, the center won a landmark case in the U.S. Supreme Court, Massachusetts v. EPA, invalidating the Bush administration’s position that greenhouse gases were not pollutants and could not be regulated. A short time later, in 2007, the center won another case against the Bush administration, when the U.S. Ninth Circuit Court of Appeals threw out the administration’s low fuel-economy standards for sport utility vehicles for failure to consider the impact of greenhouse gas emissions.4
And then there was the Julie MacDonald scandal.
An investigation by the center revealed how the administration pressured scientists and falsified data in order to deny or overturn protections for endangered species. The scandal revolved around a deputy secretary of the interior, Julie MacDonald, whose job seemed to be to limit or eliminate protections for endangered species, all over the nation and the world. A farmer and civil engineer from California with no training as a biologist, MacDonald—according to the Interior Department’s inspector general—set out to badger and intimidate biologists in the fish and wildlife service who had found a species or habitat that required protection. MacDonald denied any wrongdoing, but the inspector general, the center, and congressional testimony about MacDonald resulted in a portrait of a political appointee who seemed to rewrite and reverse scientific opinions and data to suit the administration’s pro-development, antiregulatory policies. She censored peer-reviewed science that favored protections for endangered species and replaced it with unverified claims by industry that protections were unnecessary for various species. She leaked information to industry lobbyists that aided them in lawsuits against her own department. And she reversed protections that had the potential to affect her own property in California.5
Suckling and Galvin uncovered evidence of MacDonald’s meddling and her rewriting of science6 while they were researching the endangered Sacramento Delta smelt, a small silvery fish that was being driven to extinction by excessive pumping of river water for agriculture. The little fish would prove MacDonald’s downfall. As she sought to remove the smelt from its listing as a threatened species in order to allow even more river water removal, she had replaced real scientific findings of impending extinction with unsupported claims from farming interests that declared the smelt to be in great shape. The attempt to delist the smelt was rebuffed in court, and Suckling passed evidence about MacDonald to the Washington Post. The resulting story created an uproar, and was picked up by all the major media. The Interior Department’s inspector general later found that MacDonald had violated regulations and quoted a fish and wildlife deputy director as saying MacDonald was an “attack dog” against endangered species. She resigned in May 2007. The head of the U.S. Fish and Wildlife Service conceded MacDonald had acted improperly, reopened eight endangered species listings and eventually moved to restore protections in seven of them.7 The center sued, asserting those concessions fell short. At least fifty-five other listings and 4 million acres of habitats in twenty-eight states had been denied protection and needed to be revisited because of an apparent politicization of science.8
For all its growth and success, the center remains very much a reflection of its founders’ sensibilities, though a new generation of leaders is rising. Galvin is still the master strategist and negotiator, picking the center’s fights, expanding its mission to include international cases. He lives in northern California these days, and oversees many of the larger cases on the West Coast, but he speaks daily with Suckling, plotting and brawling with his old roommate, who assumes the role of naysayer, finding reasons not to do nine of the ten new projects Galvin has in mind. “That way, we know for sure the tenth one, the one I can’t shoot down, is a winner,” Suckling says.
Except for the four years between 2004 and 2008, Suckling has been (and is currently) executive director of the center. He stepped away temporarily from administrative duties only after he and his wife, the novelist Lydia Millet, who is the center’s media editor, had their first daughter, Nola. Nola’s waifish smile evokes a rarely seen tender side of the intense and sometimes distracted Suckling. Only Nola can get him to put away his cell phone, his laptop, the species database he is constantly tweaking—and his obsession over saving species from extinctions. More than anyone else’s, Suckling’s imprint is visible in the daily life of the center—in the long hours he (and therefore everyone else) works, in his monkish uninterest in creature comforts, in his preference for hiking as a form of relaxation, in the mostly good-natured tolerance his coworkers display for his chronic inability to keep track of time or appointments, and in his immersion in the science of conservation biology and the philosophy behind it. He has continued writing about the link between vanishing biological diversity and the loss of linguistic diversity in humans. As we diminish and withdraw from nature, and as the extinction crisis mounts, he says there is evidence that we also diminish ourselves, our culture, and our language.
He explains the theory through trees and symphonies. A century ago, Suckling observes, most Americans would walk down a tree-lined street and could, without thinking about it, point out the oak, the birch, the chestnut, the beech, the sycamore. Children knew the difference, and there was nothing remarkable about knowing it. It was simply part of the daily language: “I sat under the old oak and read a book today.” Now Americans just see and say “tree.” The deeper knowledge of nature, the specific language that separates one tree from another, is now disused and beyond most of us; how many American kids today can tell an oak from an elm? This, to Suckling, is not trivial, but a marker of something larger, a divorcing of humans from the natural world. Or consider, he says, Beethoven’s Fifth Symphony, those famous first four notes, dramatic and emblematic, perhaps the most recognizable piece of music in the world. But what audiences in Beethoven’s time knew, and what few in the twenty-first century understand, is that those notes, dah-dah-dah daaaaah, have a meaning; they are a reference to nature—those notes mimic the song of a once common bird, the white-breasted wood wren. It was obvious in Beethoven’s time, when the experience of nature was far deeper and richer than it is for many Americans today: Listeners heard that refrain, and thought “wood wren.” “So what does that mean?” Suckling asks, then answers his own question. “It means the human experience is becoming increasingly impoverished as plants and animals become extinct, or as our lives become so removed from nature that the experience of those plants and animals becomes extinct.”
It’s clear that Nola’s birth has brought Suckling some new insights into Americans’ disconnect from nature, though his assessment is more ironic than hopeful.
“A child is born,” he muses. “So what’s happening in that first year? They’re learning to be human. So what do we do when this young creature has to learn how to be human? We surround them with animals. That’s the first thing we do, right? The toys and the cartoons and the music and the wallpaper and the books and the nursery rhymes. Everything is animals and jungles and forests. Isn’t that bizarre? That we, who are driving so many species extinct, who exclude plants and animals from our lives so radically, at the same time surround these young children with animals at the very time they’re becoming human…. And then we grow up and say, enough, we’re done. Screw nature. What weird schizoid creature would behave that way?
“Really, at the end of the day, I find this very frightening. Think of the experiment we’re in now. Humans have been around for hundreds of thousands of years and, for the first time, we’re saying, here’s an idea: Let’s try to live without plants and animals. This is uncharted territory. No humans have ever lived on earth the way we’re living on earth. And there’s no guarantee that this experiment is going to have a less than horrific outcome. Which, of course, is why the center exists: to cut down on at least some of those horrific outcomes.”