Western Watersheds Project Files Legal Challenge To Denial of Endangered Species Act Protections for Greater Sage-Grouse

For immediate release – March 8, 2010

Contact: Jon Marvel, Executive Director, Western Watersheds Project – 208-788-2290
Laird Lucas, Executive Director, Advocates for the West – 208-870-7621

In response to the announcement on Friday March 5 by Secretary of the Interior Ken Salazar that the listing of greater sage-grouse and two of its distinct population segments (Mono Basin and Eastern Washington) under the protections of the Endangered Species Act is “warranted but precluded”, Western Watersheds Project has filed litigation in federal District Court in Boise, Idaho challenging the “precluded” portion of the finding.

The litigation charges that the U.S. Fish and Wildlife Service and the Department of the Interior violated the Administrative Procedure Act and the Endangered Species Act by finding that the listing of greater sage-grouse is “precluded”.

“The Obama administration rightfully concluded that the greater sage-grouse fully qualify for the protections of the Endangered Species Act,” said Jon Marvel, executive director of Western Watersheds Project. “Unfortunately, the administration has violated the law in not listing sage-grouse at the same time.”

The greater sage-grouse is a charismatic bird that lives in sagebrush steppe in eleven western states. First described by Lewis and Clark in 1805, nineteenth century travelers and settlers reported seeing huge flocks of sage-grouse that darkened the sky as they lifted from valley floors. However, westward expansion and development over the next 200 years has eliminated almost half of sagebrush habitat. The total sage-grouse population, estimated between 140,000-500,000 birds, has declined between 69-99 percent from historic levels.

Greater Sage Grouse Distribution

Myriad human activities in the Sagebrush Sea have decimated sage-grouse habitat, including livestock grazing, oil and gas development, agricultural conversion, application of herbicides and pesticides, unnatural fire, urban sprawl, mining, off-road vehicle use, and the placement and construction of utility corridors, roads and fences.

The Fish and Wildlife Service’s finding indicates that current conservation efforts are failing to conserve sage-grouse.

“The ever growing effects of development of the sagebrush sea will doom sage-grouse without the mandatory protection provided by listing the species under the protections of the Endangered Species Act.” said Laird Lucas, executive director of Advocates For The West, the Boise-based legal advocacy firm representing Western Watersheds Project in the sage-grouse litigation.

Read the Legal Complaint






  1. kt Avatar

    I saw an interesting comparison to where the sage-grouse is heading under the Salazar big rancher hat on a hunting Blog:


    … On the path of the heath hen.

  2. Talks with Bears Avatar
    Talks with Bears

    If the information in the above complaint is accurate, the sage grouse was deemed appropriate to be listed in part because of “fires and climate change” two things that have always occured. Sounds more like a Darwin situation to me.

    As the lawyer wheel turns who keeps paying???????

    1. JimT Avatar

      Tell me, what would you substitute for our legal system…benevolent despotism? The Red Queen in Alice in Wonderland? Islamic law? No matter the issue, you always manage to stick in your dislike of lawyers.

      For the upteenth time, it isn’t that climate change or fires haven’t happened before. It is the rate and degree of climate change, coupled with the overwhelming of normal adaptive defenses by these two factors, that are very very different this time. Plus, despite the political campaigning going on about the emails, the fact of climate change remains strong As for fires, the fires these days are super fires, bigger and hotter, doing much greater damage to the ability of not only the plants to regenerate, but for the soil to sustain growth because the heat of the fire is sterilizing the soil and its inherent nutrients. This condition is directly attributable to the last 75 years of USFS forest fire policies, which we now know are misguided from a science standpoint, but also to the fact of ever increasing human expansion and development, requiring a policy that focuses on putting fires out.

      With the two factors you mentioned being human-based, I would hardly call it a Darwinian situation…

  3. Ralph Maughan Avatar

    Talks with Bears,

    The government pays for most of the lawyering, but the amount of money consumed by the lawsuits is pennies compared to the economic stake energy companies and others have in this.

    It is a testament to the United States that citizen groups are able to sue on issues like this. If this was another country, the energy interests would have had us shot and buried in an unmarked grave by now.

    1. JimT Avatar

      Not to mention the tens of millions of dollars in subsidies and giveaways that happen for the industrial users of public lands. The loss of revenue from the hardrock mining alone would fund the Justice Department litigation budget. Compare the two figures someday…the lawyering budget is a pittance, as Ralph says.

    2. Hilljack Avatar

      Every penny of tax payer money is of value. If environmentalists want to sue they should pay for it themselves. And pennies adds up to several million dollars a year for all the different lawsuit. Not pennies to my over taxed family.

    3. Brian Ertz Avatar

      The Equal Access to Justice Act, and other laws which provide for compensation to parties that prevail in court against the government is of critical importance to maintaining public oversight and accountability of government administration of laws such that they maintain just regard for the public interest.

      Access to our court system is often expensive, and the government is a giant beast with lots of resources to deploy against tiny litigants. As much as we can our democracy, and the rule of law that maintains its integrity, ought invite the public to keep it on track – to hold it accountable to its own law. That’s a democratic principle, and it’s a good investment in the integrity government.

      The EAJA (and other laws) ensure that the brute size and access to money and legal resources the government has isn’t overtly used to tip the scales of justice predominantly in favor of government every time – in this way, EAJA is an anti-big-government mechanism – a way of ensuring big-government doesn’t squash small businesses, individuals, and NGO public interest advocacy groups ! – after all, our governing bodies are established to serve – not undermine – the public interest.

      Remember, litigants must prevail to collect (and the fee is capped), they must demonstrate that the government is not upholding (or that it’s even undermining) the law and public interest as established via the democratic process.

      These are laws that invite and enable parties outside of government to hold government accountable to us. Otherwise, government would simply self-regulate – and we all know how well government is at self-regulation (not good).

      That democratic service that public interest-groups provide, in keeping government accountable, is of value to the proper function of our government itself, of enough value that it’s good for government to invest in it.

  4. JB Avatar


    The DOI has ~300 attorneys on staff to handle legal challenges. They, of course, are paid for via taxpayer dollars. WWP, as I’m sure you know, will pay its lawyers with the funds it raises.

    1. Maska Avatar

      Who pays the lawyers? Well, I do, for one—both the plaintiff’s lawyers via contributions to WWP, and the defense, via tax dollars. I’d much prefer that the government followed the law in the first place and saved everybody both money and trouble, but that doesn’t appear likely anytime soon.

    2. Tom Page Avatar
      Tom Page


      Ralph might be able to comment more specifically on this, as he’s on the Board of WWP, but it’s my understanding (and I may be wrong here…) that a good portion of Laird Lucas fees are paid by the federal government as part of the resolution of the case, not by WWP fundraising efforts. These kinds of things are what has Karen Budd-Falen so aggrieved lately. There was an article on it somewhere recently, maybe New West? I can’t remember.

    3. Tilly Avatar

      Yes, this excellent article in NewWest shows that the figures Karen Budd-Falen was using were completely exaggerated. She claims enviros were raking in “billions,” but as it turns out the “billions” were paid out by the entire Judgment Fund, which funds lawsuits for nearly 100 federal statutes, only 7 of which are environmental.

      EAJA actually passed with heavy Republican support, as many aggrieved farmers/ranchers/businesspeople can collect under EAJA, too. See this rancher attorney defense of EAJA:

  5. Talks with Bears Avatar
    Talks with Bears

    JimT – if you and others think this issue (and others such as the timber sales on NF lands here in MT) is indicative of a well functioning legal system then so be it.

    I will ask everyone with sharp legal minds – who determines what is “illegal” ? Is it not a court of law? According to this website it is an enviro lawyer or someone here with an ax to grind. Most of what many here say is “illegal” is really the end result of a grinding dysfunctional governmental process. BTW many here voted to put MORE government in control of their lives in the last national election.

    1. Ralph Maughan Avatar

      Talks With Bears,

      You do raise important basic questions which are almost never explained by the main stream media.

      1. The law and the regulations that are issued to put “meat on the bones of a law” determine what is legal and illegal.
      2. Courts are not supposed to write laws. However, there are usually gray areas in any law. To handle the gray areas, a court is needed to decide the meaning of a law or a rule in the gray area. Courts that go beyond that are usually condemned as “judicial activists.”
      3. Most of the lower courts don’t spend a lot of time interpreting gray areas. Their time is taken deciding whether somebody has committed a crime, or more commonly, whether somebody, including an agency of government has not followed the law. These are called “civil suits,” the other “being criminal suits.”
      4. Sometimes “the facts” of a case are agreed on by all parties. If so, the judge might make or be asked to make a “summary judgment.” This is where the judge simply compares the facts to the law and then rules. No trial. Of course, such judicial decisions cost less.
      5. I don’t agree that people voted to put more government in control of their lives in the last election. That sounds like a talking point from those who don’t like the health insurance reform proposal or some other proposal from the current Administration.
      6. Even if you are right that people wanted more government control, it was only in specific areas like having effective regulations on what investment banks can do. The creation of a huge real estate bubble followed by a big collapse made more than a few folks unhappy. You too, I’d bet.

    2. Maska Avatar

      To judge from quite a long list of decisions in the past few years, many of them reported on this website (with links to the actual decisions in many cases), the courts have apparently determined that the government, in the form of land and wildlife management agencies, has often had problems following the law or its own written administrative procedures.

      As for “dysfunctional government process,” that seems to be at least in part in the eye of the beholder. If you’re a board member or officer or major stockholder of a big energy corporation, I assume you’re pretty happy with the deferral of the sage grouse listing, for example. If you place a higher value on the grouse itself or intact sagebrush ecosystems, you’re probably less happy about it.

      Looking at it a little more broadly, it seems to me that the real question for most people isn’t how much government there is, but what it does. Some folks don’t want the government regulating business practices or campaign spending, but are fine with the idea of government regulating abortion or scrutinizing private communications for ostensible national security reasons; others don’t want it looking into their e-mail or doctor/patient relationships, but are in favor of greater oversight of the banks and brokerage firms and restrictions on unlimited corporate spending on “issue ads.” Some believe in large military budgets, while others want to see more spending on social programs or renewable energy development. Interestingly, scarcely anybody over 60 wants to shrink government by abolishing Medicare, to judge from the signs at local TEA party protests. 🙂

      I don’t believe most voters on either side in the 2008 election were actually voting for either more or less government per se, but in reality, were voting for a government they felt would better reflect their values.

    3. JB Avatar


      We had a conversation about this very topic a little before the last election, here’s what I said then:

      “I want to follow-up on the idea that voting Republican will mean small government. It hasn’t for years (since before Reagan, anyway). Republicans in recent times have actually grown the government as much or more than Democrats, and accrued greater debt to boot. Given that both parties are now the parties of “big government,” (which I’m not

      entirely happy about), the question is where would you like your government to place its priorities? So let’s take a look at the Federal governments priorities under Bush, as indicated by the 2008 budget. Here are the winners and losers:

      First the winners:
      1. War on Terror: +45.8%
      2. State & International Programs: +22%
      3. Veterans Affairs: +18.7%
      4. Transportation: +13.1%
      5. Defense: +12.1%
      6. National debt: +9.2%

      Total spending on these programs: 974.1 Billion

      Now the losers: (remember, inflation is around 3%)
      1. Dept. of Labor: -9.4%
      2. Dept. of Education: 0.0%
      3. Dept. of Health & Human Services: +0.3%
      4. Dept. of Housing & Urban Development: +1.4%
      5. Unemployment/Welfare: +1.8%
      6. Department of Interior: +2.9%

      Total Spending on losing programs: 505.7 Billion (Note: 324 Billion is from unemployment and welfare).

      So there you have it. The Republicans (at least under Bush) emphasize war, military spending and international programs over health, education, housing, and the environment. Not sure about any of you, but the federal government’s spending under Republicans does not reflect my priorities for this country.”

      –I haven’t yet seen how things have changed under the Obama administration, but you can be damn sure I’ll look before the next election.

    4. JimT Avatar


      You still didn’t offer an alternative system. It is oh so easy to point out the flaws, but not so easy to come up with workable alternatives, eh? I will take this system with all of its warts to any alternative jurisprudence system I have studied, read about, or heard about. Unless I get to pick the despot…;*)

      Ralph’s comment is a good one. I will point out that “judicial activist” has been used by the conservative right as a way of whining when a decision didn’t go their way, and has lost all relevance in terms of strictly legal meaning, and more of a political label than anything else. The Bush decision, and the recent decision on the corporate speech and personhood is about as textbook example of the old meaning of judicial activism..ignoring past precedents to create law based on policy or political considerations. Yet, you wouldn’t find a legal commenter on the Right to label those decisions as the dreaded JA…just the “right way to rule”.

      And while alot of challenges are of government action, there are plenty of suits challenging private corporate actions as well when they are the appropriate party to sue given the language of the laws. Illegal is illegal, no matter who the defendant happens to be if that is the verdict.

      I didn’t vote for Obama to get more government in my life. I voted for Obama to get moral corruption and corporate greed out of Washington DC and the White House. And I agree with Ralph…to get government to resume its rightful role in overseeing the banks and Wall Street, to fix the broken health care system, and to fix the Bush-screwed up economy as well as the environmental agencies. The last one hasn’t worked so well, I am very sad to say, but more than willing to state.

    5. Talks with Bears Avatar
      Talks with Bears

      Jim T – easy cowboy, you are “badgering” me about an alternative to our current legal system. You must have no children or you would have more patience. I am in the process of educating myself. I can thank you, Brian, Robert, William and Ralph. If I had received more strait answers I may be further along however, some of my instructors have not always been strait forward with me – maybe part of the process eh?

      I appreciate your honesty on the election – as progressive as Obama is I am conservative. When he spoke I could feel that he was connecting with certain people, people maybe that had not had someone to connect with in a long time – it scared the hell out of me then and still does to this day – he is committed just like I would be in his shoes and I do not know how this ride is going to end.

  6. Talks with Bears Avatar
    Talks with Bears

    JimT – I did not know you were a climate expert – should give us even more to discuss when we get together. Do you know some folks on that gravy train also?

    1. JimT Avatar

      Yeah, some local Nobel Prize winners who are here in Boulder. Whom do you know?

    2. Talks with Bears Avatar
      Talks with Bears

      JimT – the nobel winners that you know, did they ever work/obtain knowledge on anything or did they just “get” their prize and money like Gore and Obama.

    3. Talks with Bears Avatar
      Talks with Bears

      JImT – I can certify to you that I do not know professionally or personally any Nobel Prize winners.

    4. JB Avatar

      I love the conservative response to climate change. They finally realized they’ve lost the battle on climate change not taking place, so now they’ve moved on to grumbling that it’s just “natural” fluctuation. Like that makes it any less of a problem! If you’re living 20 feet above sea level you’re not going to care whether the rise in oceans that consumes your property is “natural” or not.

      The scientific community is past trying to convince people, they’ve moved on to trying to figure out what can be done to adapt to the effects climate change.

    5. Talks with Bears Avatar
      Talks with Bears

      JB – no one is responding to climate change – that has been occuring since the beginning of time – even you may be able to understand that. People have responded to the proposed “man made global warming” misinformation campaign.

    6. JB Avatar

      The only “misinformation campaign” I am aware of is the one that attempts to suggest that humans do not contribute to global climate change. The 2007 IPCC report required consensus (general agreement) on findings; the panel included nearly 4,000 of the world’s leading experts on climate, and then was reviewed by more than 2,500 other scientific experts.

      The report concludes “warming of the climate systems is unequivocal”. The panel said the following regarding human influences (please not how carefully this is explained):

      “Global atmospheric concentrations of CO2, CH4 and N2O have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years (Figure 2.3). The atmospheric concentrations of CO2 and CH4 in 2005 exceed by far the natural range over the last 650,000 years. Global increases in CO2 concentrations are due primarily to fossil fuel use, with land-use change providing another significant but smaller contribution. It is very likely that the observed increase in CH4 concentration is predominantly due to agriculture and fossil fuel use. The increase in N2O concentration is primarily due to agriculture. {WGI 2.3, 7.3, SPM}”


      “There is very high confidence that the global average net effect of human activities since 1750 has been one of warming, with a radiative forcing of +1.6 [+0.6 to +2.4] W/m2 (Figure 2.4). {WGI 2.3, 6.5, 2.9, SPM}”

      **In my experience, scientists rarely reach the kind of consensus that has emerged regarding the impacts of humans on climate.

  7. Virginia Avatar

    JimT – I would like to thank you again for sharing your legal knowledge with those of this who frequent this website. Some who post here find it necessary to insult others who do not share their beliefs. There is so much scientific information available to confirm the realty of climate change that one does not have to be a climate expert to conclude that climate change is real and is having a negative effect on the planet.

  8. Brian Ertz Avatar

    public oversight, provisions of law that allow standing for citizens to contest government decisions (especially those decisions that are unduly representative of economic interests over the public interest), statutes that provide financial compensation to citizens who prevail in court (EAJA, etc. to remedy the potential for economic powerhouses to have sole/disproportionate access to courts) etc. are all critical components of our democracy that help to make it work.

    one of the claims in the sage-grouse litigation is that “warranted” decisions that end up with listing (as opposed to “precluded” as was the case here) are largely determined by the courts. The agency responds to the courts and rarely lists a species, even if “warranted”, of its own accord. That the courts have had to exercise so much influence with respect to listing decisions is not indicative of a problem with public litigants ~ it’s a condemnation of Interior’s failure to do so in a lawful way. And if you think about it, it makes sense – the Interior Department is a political animal, the nature of preservation – of meaningful regulation of economic activities – is politically controversial – a political liability, and that influence is always going to be felt.

    Interior’s response is to pass the buck – to seek judicial cover – not to list until a court of law demands it so whatever administration is at the helm at a given time doesn’t have to take responsibility for the stoked heat that economic interests will always foment in response to threat of regulation.

    Would Talks with Bears prefer that listing determinations, the fate of species, be solely determined by Interior given such a politicized environment ? Or would you acknowledge that there might be some benefit to an impartial mechanism that has as its primary focus the impartial application of law which permits demands the reintroduction of a just consideration for the public interest into listing determinations.

    The courts are the only mechanism we have as of yet to accomplish that. The public’s ability to contest government decisions, its standing, is the only mechanism we have to prompt the courts to consider such.

    People like to talk about how much money the courts cost. How much tax-payer dollars are spent. But they forget – the courts are an equal branch of government. Think of all the money blown on political campaigns, lobbying, etc… There’s a lot more money wasted in frivolous political posturing in the Executive and Legislative functions of government. The Judiciary is deserving of a fraction of said resource ~ and it’s money well-spent. The check the Judiciary provides, and the voice it grants individual citizens, is a good investment in the health and well-being of government.

    1. Devin Avatar

      Nicely said Brian. Now, environmental interest groups need to work on figuring out how to get the above information out to the general public who have little understanding of the politics of agencies and who also have low trust in attorneys and the judicial system.

    2. Talks with Bears Avatar
      Talks with Bears

      Brian – I am a private U.S. citizen, I cannot sue the U.S. government unless they allow me to correct?

    3. Brian Ertz Avatar

      Talks with Bears,
      I can certainly sue the government, so long as you demonstrate standing.

      Demonstration of standing is different for different issues. With respect to administrative action, one must generally demonstrate interest in the action (comment, sometimes set foot on a landscape at issue or view wildlife harmed, etc.), exhaust administrative remedy (protest, appeal, or short of that if there is no opportunity at administrative remedy), and generally demonstrate the potential for the action to harm your interest etc.

      So, as a U.S. citizen, you can certainly sue the government – that’s sort of the point – if you’re willing to educate yourself about how to do that. In fact, in administrative appeals, you don’t even need a law degree to contest a government action. If you want to go to District Court ~ i.e. litigate a decision ~ you gotta have lawyers or a law degree.

  9. Talks with Bears Avatar
    Talks with Bears

    Brian – how can the “court system” be an equal branch of government if a legal U.S. citizen has to “demonstrate standing” to access it? We as citizens do not have direct electoral control over the judicial branch (at the federal level) and as far as engaging the Federal Government within in that system we clearly do not have direct access. I am not asking or arguing the constitutional aspect of the seperation of federal powers, I am arguing your suggestion that the court system is some how an equal branch of government. Thanks for your time on this issue.

    1. Brian Ertz Avatar

      we as citizens don’t have direct control over the judicial branch ~ however, if we can demonstrate enough interest, pursuant to a particular statute’s citizen-suit provision(s) authorizing judicial review (i.e. the ESA iterates its own criteria for citizen-suits to pursue review ~ which involved 60-day notice, etc.) then we can challenge a decision. Some laws have their own provisions for citizen-suit, other points access to courts with respect to administrative action might be the Administrative Procedure Act (APA) :

      the basic purposes of the APA are: (1) to require agencies to keep the public informed of their organization, procedures and rules; (2) to provide for public participation in the rulemaking process; (3) to establish uniform standards for the conduct of formal rulemaking and adjudication; (4) to define the scope of judicial review.

      The APA constitutes a statutorily established law which provides a general framework for you or I to challenge an agency action ~ a codified principle that citizens ought have more influence to challenge our government than once every 4 years at the ballot box.

      Particular agencies are allowed to implement this general principle individually, to provide opportunities at citizen involvement including but not limited to comment, and administrative adjudication opportunities through their own rule-making processes. Once these administrative remedies/opportunities at citizen adjudication are exhausted, you or I can pursue litigation to remedy harm to your or my interest if certain criteria are fulfilled. Usually that criteria is pretty legitimate, i.e. other remedy exhausted, actual harm is threatened (and to show potential for actual harm, you probably gotta demonstrate some level of interest in a particular action, whether that be by demonstrating visitation of a landscape affected by an action or demonstration of some financial interest, etc.). Judicial efficiency is probably another consideration that judges consider.

      I certainly agree with the suggestion that sometimes the criteria is unduly prohibitive with respect to individual citizens’ access. This is where associations – or interest-groups (whether they be public-interest or private interest) become relevant with respect to judicial review. Interest groups can compile and deploy resources necessary to jump through the hoops to gain access (standing) to the courts – and acquire attorneys who understand the bureaunese and legalese necessary to shut the bastards down.

      If you like the environment, join an environmental group you like and send them a check, they’ll probably have members who have touched the ground you care about and understand how to ascend the hurdles – or, because you’re an official member – you’ll have touched the ground, and your having done so will grant the group standing and they can represent you either politically, in the media, or in the courts – depending on where their focus resides.

      The courts equality is with respect to its power – and certainly that ebbs and flows.

    2. Talks with Bears Avatar
      Talks with Bears

      Brian – lastly, you cover many times in your thoughts today – administrative process. Could it be, that the governmental admin process has become or may have always been totally ineffective. So, the result of this would be actually burdening the LEGAL system with too much. As you stated earlier today about the courts being able to decide only say maybe one admin issue at a time – therfore this whole process draws out in the courts when in fact in a functioning admin system this would not necessarily happen.
      Jim T – as a public admin scholar, feel free to comment.

    3. JB Avatar

      It is interesting that, of the three branches, the Judicial is by far the least corrupted by the all-mighty dollar; yet, it appears to be the most disdained by conservatives. I can’t help but wonder why? Is it just sour grapes (i.e. conservatives can’t buy the outcomes they want)?

    4. JimT Avatar

      I don’t know what “administrative system” you are referring to specifically. There are administrative “courts”, especially at the state level, who have initial jurisdiction over most regulatory matters like electrical companies, etc. There is the IBLA at Interior which handles certain types of administrative appeals. There is the APA at the federal level which technically is the law that if there is an alleged violation of regulations, would be the statute to refer to for redress.

      If you are talking about the actual court administration..how the clerks work, how cases get filed, what rules of procedure the courts will follow…there are certainly some things broken there. One is the number of cases filed has increased tremendously over the past 20 years as people resort to litigation for things that used to only require a beer and a conversation. Two, state budgets for court administrators and the courts in general have fallen, making the processing of the filings slower, delaying justice…whatever that means to you. There is a common saying you hear in law school….if you are looking for justice, the last place to look is a courtroom; it is all about winning and losing, and that is a third problem, but much harder to address in any concrete way.

      Efforts have been made to file certain types of cases…domestic relations law, juvenile law, certain levels of civil claims, even mandated arbitration…to fix the bottleneck, but the system can’t keep up with the litigation addiction we have in this country. It is an interesting thing to ponder that to get better “justice” out of our courts, we may have to have stricter standards about who gets in there in the first place. I certainly don’t support the filing of so called frivilous lawsuits because once they hit the system, the courts HAVE to deal with them, which takes time and personnel. I don’t think enough attention has been paid to the actual administrative processes of the legal system..I do agree there.

    5. Talks with Bears Avatar
      Talks with Bears

      Jim T – I really appreciate your input. I have a question regarding our enviro issues. In your opinion, does the lack of adequate system process at the DOI or National Forest Service lead to many of the perceived problems with court system? In other words, are basic admin issues such as deadlines for reports etc. ending up in federal court simply because they are not being done due to lack of system function?

  10. JimT Avatar

    There are plenty of state court systems where judges are elected. A debate about the wisdom of introducing the same potential for money-based corruption and undue influence can be had another time. Personally, I think it is a very bad idea. I favor some sort of review system by the state authorities, and a strict enforcement of the Judicial Code of Conduct, along with a healthy dose of humility by all judges. I remember going to a State courtroom in Arizona, and the judge, when challenged on a point of law by the attorney, stood up and said.”In this courtroom, I AM God, and I will rule as I see fit.” Clearly a judge who shouldn’t have been there. But, that is different from condemning an entire system of legal decision making.

    And in terms of the other branches of government, you must also meet certain requirements in order to participate in their worlds as well, though they might not be as stringent as establishing standing. I don’t practice in state courts, but I know you can thank a certain Judge Scalia for making it a lot harder to establish Federal standing, and you can thank conservative politicians for stripping out citizen suit provisions from laws to deny access to the courts for redress of wrongs. See, liberals like to have people have their say in court…conservatives, not so much.

    You can not like the setup of the Constitution, but if you read the Framer’s papers, the legal scholarship of the time, the Supreme Court was absolutely intended to be a co-equal branch of the Federal Government, to serve in theory as a referee and final decision maker, immune from the usual pressures of poltics that the House and Senate are subject to. That concept of three co-equal branches of government was also followed when states were formed.

    1. Talks with Bears Avatar
      Talks with Bears

      JimT – I have no problem with seperation of powers or the constitution. I was simply commenting on Brian’s assertion regarding the “court system” – and accessibility to us, the citizens – maybe it is not as accesible as some had planned.

  11. JimT Avatar

    Well, not all things conceived of 300 years ago work as well as planned, and the court system is certainly deserving of some of the criticisms of its administration and operation, like most systems or organizations in this country. For most matters, the state courts would have jurisdiction for things in your everyday life, and most states have made it very easy for suits to be brought, creating tiered systems, and the most common claims…to recover money from a contractor who didn’t finish work, landlord and tenant disputes, etc…probably don’t require you hire a lawyer, even. ;*)

    I don’t think it is an accident that the standards for access to deal with larger, Federal matters set the bar higher because the stakes are much higher. I do think the great shame of the last 30 years for the federal court systems has been its politicization. Instead of searching for the most qualified jurists, the nominating and appointing bodies look for candidates most likely to support an political agenda for their terms on the bench. The Republicans, starting with Regan, have simply done a much better and more ruthless ideological job in their appointments. Clinton never did show much interest in filling the seats he could have filled, and usually went for a centrist judge. I think the same will be true for Obama and the Dem Senators when openings come up in their states.

  12. Robert Hoskins Avatar
    Robert Hoskins

    While I’ll leave the discussion of the internal workings of the court system to the legal professionals, as I’m a layman, I will say that IMO the increasing pressure on the courts comes from the recognition that of the three constitutionally established branches of government, the judicial system is the only branch that is still legitimate.

    In other words, it is recognized that the legislative and executive branches are corrupt, venal, and dysfunctional beyond repair, whereas the courts appear to still be committed to the rule of law.

    This is one reason the courts are under so much pressure from the right to place ideologues, not judges, on the bench. As we see with the appointment of Justices Roberts and Alito to the US Supreme Court, and the appointment of torture fan Jay Bybee to the 9th Circuit, the right is moving right along in its attempts to capture the system. This is perhaps the greatest threat facing democracy in the US, because the courts are our last line of legal defense against religious, political, and economic tyranny.

    I worry that this is not a pressure that the courts can sustain.


  13. timz Avatar

    ” and usually went for a centrist judge. I think the same will be true for Obama ”
    You mean like Sotomayer?

    1. JimT Avatar

      Look at her rulings….former prosecutor, etc. She is hardly in the classic liberal mode of William O Douglas. I think she will be fair and rule based on the precedents and law before her. I honestly cannot say the same for Alito, Roberts, Scalia, Thomas (who is a joke as a jurist, never mind the whole sex tape thing)…idealogues through and through and make no bones about it, even in speeches, especially Scalia who is convinced he has a psychic hotline to the Framers of the Constitution.

  14. timz Avatar

    “In other words, it is recognized that the legislative and executive branches are corrupt, venal, and dysfunctional beyond repair, whereas the courts appear to still be committed to the rule of law.”

    I agree 100%, but that corruption is bound to spill into the courts regardless of who is doing the appointing.

  15. Robert Hoskins Avatar
    Robert Hoskins

    That’s what I worry about. It’s already happened with Roberts, Alito, and Bybee and no doubt other judges I don’t know about from the Bush era.


  16. timz Avatar

    Judges have almost become like politicians to most people. Some may not like Alito because he’s conservative, while the next guy may not like Sotomayor because she’s a liberal. If Malloy rules to relist the wolf how many times will we hear “stinkin liberal judge”. None of it the minds of most people has anything to do with the law.

  17. JimT Avatar

    This latest round of politicization began in earnest after Bork was turned down for a seat. The Right started a campaign to take over the federal court system through litmus tests and appointments based on those litmus tests, mostly Roe V. Wade. The Senators since then have gone increasingly in that direction, with the Right more committed than the Left, in all honesty, and they have done a good job at accomplishing their agenda, as distasteful as it is for me to day, but you have to give them their due.

    Alito and Roberts and Scalia are idealogues whose personal opinions drive their rulings, plain and simple. This group will go down in judicial history as the most activist..in the classic meaning…set of judges in the history of the Court. If Obama has another nomination, I hope it is an out and out liberal jurist. It won’t change the balance on the court, but I sure would like to have someone tick Scalia and the gang off royally in conference…VBG

  18. Si'vet Avatar

    And if Malloy rules to delist, he will be “a pawn of politicians,ranchers and hunters”!

  19. timz Avatar

    Si’vet, exactly my point, depends on where you stand on the issue.

  20. timz Avatar

    Here’s a take on the whole Supreme Court thing posted today.

  21. Wilderness Muse Avatar
    Wilderness Muse


    You are right. Judge Molloy, is a thoughtful, well-rounded local Montana boy, from farm country, and who served his country in the military, and was schooled in law in MT.

    For the wolf issue, his job is to look at what the ESA law says, interpret whether USFWS in choosing to delist followed the law, by giving two states management authority over wolves, and deny management authority to a third. He did not write the law. But he must interpret it in a reasonable manner, because his decision, which ever way he rules, will likely be appealed, and reviewed by the 9th Circuit Court of Appeals in Denver.

    This will likely not be an easy decision for him to write.

    Politics has always been present in federal court judicial appointments because all appointments are made by sitting Presidents, subject to Senate confirmation. Federal judges stay on the bench for life, if they choose. This insulation supposedly gives them opportunity to reflect and philosophize over what is best for our country – Idealistic? Yes. Naive? probably. Is there a better way of selecting federal judges? Probably not.

    As a young boy I had an opportunity to meet and become acquianted with Justice William O. Douglas (and his wife Cathy). He knew me by name and because of my age I had not a clue of his role as a Supreme Court Justice, in fact we never talked law. Legal scholars, in reviewing his decisions, have not always looked kindly on his legal reasoning skills and written opinions. However, he has, because of his personal values and lifelong love of the environment, and his influential role as a jurist (read this as politics), left an indellible and generally favorable image as a judicial activist. He did not view the Constitution as a neutral document.

    He has the enduring respect of nature lovers and civil libertarians. He sat on the court for 36 years, which is one of the longest tenures of any SCOTUS justice.

    He thought trees and other inatimate objects should have “standing to sue.” He articulated this reasoning in Sierra Club v. Morton, in 1972, in his dissenting opinion.

    Yep, I have fond memories of Wild Bill.

    1. Wilderness Muse Avatar
      Wilderness Muse

      Post above. Geeez,…… 10th Circuit, not 9th.

  22. timz Avatar

    “This will likely not be an easy decision for him to write.”

    Definitely a no-win for him situation.

    1. Wilderness Muse Avatar
      Wilderness Muse

      I need a cup of coffee. Appeals Courts: 9th Circuit was correct for – ID and MT, with offices in San Francisco. 10th – for WY, with offices in Denver.

  23. JimT Avatar

    My wife was sworn in by Justice Douglas when she took her first job in DC with “Nader’s Raiders”, and continued her friendship with Cathy until Douglas passed. Because of my politics and values, I liked his decisions for the most part. And I think viewing the Constitution as a “living, breathing document” that changes in its application as a country and its people and culture changes is a realistic one. Scalia’s view that it is a document that basically died when it was signed simply makes no sense intellectually or socially, but there you are. He is on the Court, and yours truly is not…VBG.


Ken Cole is a 5th generation Idahoan, an avid fly fisherman, wildlife enthusiast, and photographer. He is the interim Idaho Director for Western Watersheds Project.

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Ken Cole