Greensweep Lawsuit Update
...by Bernadette Webster
Operation Greensweep in 1990 was planned in such a hurry that realities such as funding, military involvement, etc., remained unresolved until mere weeks before the Operation was to begin. Procedural compliance with NEPA (National Environmental Protection Act) seemed to have been the farthest thing from the planners' minds. An EIS (Environmental Impact Statement) would have been appropriate, as the Operation was at the very least what is called a "Major Federal Action." Just a week or two before Blossom Edwards and Jim Lynn were held at gunpoint by apparent commandos, a "Law Enforcement Exemption" for NEPA procedures was run through in just three days to negate the need to write up an EIS.|
Nobody seems to have turned to the next page to read the Exceptions to the Exemption, most of which applied. For example: a) have significant adverse effects on public health or safety; b) have adverse effects on geographic characteristics such as park, recreation or refuge lands, wilderness areas...; c) have highly controversial environmental effects; d) establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects; e) be directly related to other actions with individually insignificant but cumulatively significant environmental effects; f) have adverse effects on endangered species, or have adverse effects on designated Critical Habitat for these species. As the Federal Judge presiding over this case noted, "If an operation 'may' fall within one of these exceptions to the categorical exclusions, 'environmental documents MUST be prepared.'"
Judge Smith was highly offended at the roughshod approach the government took in this instance. ((We are limited to suing the California Bureau of Land Management (CA BLM) because they did the actual planning of this particular operation even though we showed that its original conception was in the White House.)) She remarked that the "federal defendants contend that because BLM found that Operation Greensweep was planned and implemented in accordance with the BLM's internal marijuana eradication guidelines, NEPA's 'reasoned explanation' requirement was satisfied. This argument suggests that a federal agency can avoid NEPA merely by adopting and following its own internal guidelines. No authority supports this position."
Judge Smith has since ordered both sides (Us, the plantiffs, and Them, the defendants) to negotiate a settlement agreement and get back to her. Because we have had irreconciliable differences regarding major issues, the Judge offered her services as a mediator, which we readily accepted.
So, on the morning of March 20, four of us, Sharon Duggan, an environmental lawyer locally famous for her pro bono work, Ron Sinoway, ED Denson, and myself, headed into city canyons to the law offices of Heller, Ehrman, White and McAuliffe. There we shot to the 31st floor of an Ivory Tower in moments and were escorted to a conference room with a view -- a glass wall looking out to the Bay framed on one side by Coit Tower and on the other by the B of A building. We hunkered down there for five hours with Jonathan Leo, an environmental lawyer who's been with this lawsuit since 1990, and Heather Leal, a young woman we met a few years ago interning at the firm, who's now a full-fledged lawyer and an incredible researcher. By the time we left for the Courthouse, we had discussed every issue forwards, backwards, and sideways. We understood each other, what needed to be presented, and how to pose it. I found every person in that group to be intelligent, articulate, idealistic, completely focused, and committed.
(We want reviewable accountability of NEPA compliance in the future. The government acts helpless to provide this. The Judge seems to say that law enforcement is hard to nail down and we should learn to accept this. We continue to prevail with our beliefs.)
Judge Smith first took the plaintiffs (Us) into Chambers, where we heard her gist of the situation and we clarified our position and the need for implementation of our demands. Next we cooled our heels (occupying the time with more discussion) in the empty Courtroom while the defendant (government lawyers and the head of CA BLM law enforcement) went to the Judge's Chambers. When they finally came back out, the Judge summed up what could reasonably be provided to us -- not enough.
We then went into an open discussion with the Judge observing/listening and sometimes joining in. I still feel we are a long way from what we want, but we've got a process in motion and will proveed with it as far as we can, opening up and educating whatever Ivory Tower-types with whom we come into contact about the realities of Life On The Ground.