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(What follows is a sidebar to "The Green Scheme" by J. Zane Walley.)

San Francisco and the country’s greenest court.
© 1998 by J. Zane Walley, RANGE magazine, Carson City, Nevada

U.S. District Judge James Ware was a Clinton nominee for the Ninth United States Court of Appeals in San Francisco. However, he got shot out of the saddle, or rather shot himself in the foot. Judge Ware had a canned story he regaled audiences and the media with for years. He dramatically related the 1963 story of riding his bicycle in Birmingham, Ala., with his kid brother Virgil sitting on the handlebars. White racists shot and killed his brother who, the judge said, "died in my arms."
     In 1994, Judge Ware told the San Jose Mercury News, "When I went through the death of my brother, I came very close to becoming someone who could hate with a passion. What happened to me was a defining experience, a turning point in my life, and I’m actually very proud of how I came out of it."
     There was just a small problem with Mr. Ware’s story. It was a boldfaced lie. There was a Virgil Ware, shot and killed in Birmingham, who had a big brother named James. The real James works for an Alabama mining company and his words for "Your Honor" are not kind. "He’s trying to better himself off somebody else’s grief," James said in an interview with the Washington Post.
     The act of nominating a self-martyred, chronic liar to one of the most powerful positions in the American justice system is an insult to the citizens and the judiciary. It casts serious distrust upon all appointees to the court. Who are these non-elected officials who powerfully influence every citizen’s life? Are their rulings influenced by the Clinton-Gore environmental mandates? One of the past rulings by the infamous green Ninth District U.S. Court of Appeals is a red-flag indication of federal court justices imposing their views in environmental and community affairs. The ruling opened the gate wide for a new breed of environmental lawsuits.
     The Natural Resources Council, a New York non-profit corporation in partnership with the National Audubon Society, sued the U.S. Department of the Interior and its various agencies. The lawsuit contended the defendants, including U.S. Fish and Wildlife Service (FWS), violated the Endangered Species Act by failing to designate critical habitat for the coastal California gnatcatcher.
     It is meaningful to note that the FWS wrote the Endangered Species Act and of all the pinheaded, empire-building bureaucratic organizations, it has the most to gain from its enforcement and expansion. FWS contended that designating critical habitat "would likely make the species more vulnerable to prohibited taking activities." That is to say in plain English, landowners would find where the troublesome little varmints were located and get rid of them before losing use of their land.
     Not content to allow even FWS to protect a largely unknown and unheard of bird, the Ninth slapped a rigorous reprimand on their fellow Feds, saying they had indeed failed to designate critical habitat for the gnatcatcher. Judges Harry Pregerson and Dorothy Nelson waxed poetic about "a songbird unique to coastal Southern California" and found "the Service failed to discharge its statutory obligation to designate critical habitat when it listed the species." These San Francisco judges read the ESA as, "When a species is listed, critical habitat must be designated."
     This dangerous ruling has encouraged scores of environmental lawsuits, most notably the recent flurry filed against the U.S. Forest Service and grazing permittees in the Southwest. The sanctioned words of these non-elected authorities have given green activists a whole new tool to use in their war on ranching.
     Such rulings?made far away from affected communities and lands by politically appointed justices who have no relationship with or understanding of either?strike whole populations and industries as cast-in-iron, can’t-ever-reverse-it, federal court decisions. These judgments from political pawns who probably don’t know a hoot owl from a holler control each of us, our land, our livelihoods, our rights and our tomorrows so heavily that the extensive impact cannot be fully measured or even imagined. Their words, regardless of the citizens’ will, become law.
     Judge Ware was withdrawn from consideration for the Ninth District, but he is not resigning, nor has he been asked to resign his current U.S. district judgeship. A citizen who lies to a federal judge, or any member of the federal judiciary, is charged with perjury and faces a mandatory prison sentence. Which raises the question: Why are people such as this man, this known and proven liar, empowered to judge actions of others, and make crucial decisions which affect our lives and those of future generations?

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