Unless you have been away casting for blind brookies in the darkness of a hidden cave within the most isolated reaches of the Patagonian desert or otherwise cut off from civilization, you've undoubtedly heard the good news by now.
In a decisive legal victory for the Anglers and our Sierra Club partners, a federal jurist has hammered the Bureau of Land Management and U.S. Forest Service for their misguided efforts to justify and expedite an ill-conceived plan to drill for oil and natural gas in the Huron-Manistee National Forest.
If left unchallenged, Traverse City-based Savoy Energy would have been allowed to disrupt one of the most environmentally sensitive areas of Michigan's Lower Peninsula by destroying a portion of old-growth forest, jeopardizing endangered species habitat and sinking an exploratory shaft beneath a portion of the cherished Mason Tract.
Bay City Magistrate Judge Charles E. Binder found in a remarkably straight forward and sometimes sharply worded 28-page report that the federal agencies' officials had not only erred in failing to fully examine the potential ramifications of granting Savoy's drilling request, they also had acted in an arbitrary and capricious manner by ignoring mandates imposed by the laws and regulations they are supposed to be governed by - the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), for example.
The failure to adhere to their own rules, Binder found, led to a defective Biological Assessment (BA) that, in turn, generated a hopelessly flawed Finding of No Significant Impact (FONSI).
"In spite of these explicit mandates, entirely missing, I suggest, from the conclusory statements contained in the BA and the FONSI which flows from it," Binder scolded, "is any meaningful consideration of the Forest Service's duty under the ESA to encourage the propagation and diffusion of endangered species.
"I therefore suggest," he added, "that while paying lip service to its duties, the BA and the accompanying FONSI for this proposed project amount to arbitrary and capricious action…As a result, I suggest that the BA and FONSI upon which it relies should both be declared inadequate…"
While the judge magistrate's findings constituted nothing but good news for our side, a few loose ends remained to be tied up at press time. Under federal court rules the BLM and Forest Service had 10 days to respond to Binder's report, and we - as represented by the Anglers of the Au Sable, the Sierra Club (Mackinac Chapter) and Tim Mason - would then have 10 more days to launch a counter attack to the government's arguments.
Also, Binder's report was subject to review and approval by his immediate superior, U.S. District Court Judge David M. Lawson. While Lawson could overrule his judge magistrate's recommendations, such an unfortunate development was seen as highly unlikely since Lawson was the judge who issued the first injunction against the project back on Dec. 7, 2005.
As Marianne Dugan, the Oregon-based environmental advocate who so skillfully and persuasively argued our case in court put it: "He (Judge Lawson) could accept or deny the recommendations, but we're confident that he will accept them. I would be absolutely shocked if he ruled otherwise."
In related pre-press-time developments, it should be noted that efforts to obtain comments from the opposing side were unsuccessful. A message left on the answering machine in the Washington, D.C., office of the government's lead attorney in the case, Gregory D. Page, did not draw a response.
Forest Supervisor Leanne Martin, who issued the original Finding of No Significant Impact that gave the green light to the controversial drilling project in February 2005, was away from her office in Cadillac when the Riverwatch attempted to reach her, and was unavailable for comment, according to a Huron-Manistee National Forest spokesman.
A spokeswoman for Savoy Energy said the company would offer "absolutely no comment whatsoever" on the latest legal setback to its efforts to exploit the oil and gas reserves that may or may not lie beneath the National Forest and the adjacent Mason Tract.
Rusty Gates, president of the Anglers of the Au Sable and one of our most vigilant watchdogs over our precious Au Sable River and its equally precious environs, was cautiously optimistic at the judge magistrate's report, despite Binder's favorable findings in behalf of our cause.
"It's just one more step in the process," Gates said. "It may be a giant step in our favor, but we still have a long way to go before we can say we've won. There is still a major legal battle ahead of us."
Bruce Pregler, a lawyer who has worked tirelessly on our behalf, was a bit more enthusiastic after reading Binder's report.
"It's a gem that needs protecting," he said of the Mason Tract, a historically significant 4,500 acres of fragile wilderness that encompasses a 14-mile stretch of the fabled and trouty South Branch of the Au Sable River.
"We're just excited to death that the recommendation is in our favor."
If Judge Lawson has ruled in support of Binder, as he was expected to do, federal attorneys representing the BLM and Forest Service, could accept his decision then throw in the towel to end what has become an emotional, protracted and (needless to say) expensive legal fight. Or, as is more likely, they could take the case to the Sixth U.S. Circuit Court of Appeals in Cincinnati for a new round of litigation.
The Mason Tract, was handed down to the people of Michigan by George W. Mason, a pioneering auto industry executive and ardent fly fisherman. Mason was chairman and CEO of American Motors Co. when he died suddenly in 1954 at the age of 63. A generous man as well as a wealthy one, Mason left about 1,500 acres of riverfront property to the State of Michigan with the ironclad understanding that the land would be maintained in its natural state, but kept open for recreation.
Nowhere was the drilling of wells or the intrusion of profit-driven, environmentally hostile speculators mentioned.
In fact, the spirit of his gift is probably best summed up by a plaque at the Mason Chapel which reads: "Here may the fisherman receive the same inspiration which led George W. Mason, a true sportsman, to bequeath to the public this land and this sanctuary beside his beloved river."
Mason's grandson, Tim, has joined the Anglers and the Sierra Club in the legal struggle to prevent the drilling project, and was pleased with the latest courtroom victory.
"At the same time," he said, "we have to remember this is a long way from being over. It's a shame that the situation has come down to this because the Forest Service did not do the right thing in the first place.
"I think Granddad would have smiled at this decision, but, even more important, he would have been thrilled to know there is a first-class organization out there like the Anglers of the Au Sable that is willing to make a commitment to an all-out fight to defend something that was so important to him. He would be overjoyed by the work that the Anglers have done so far."
Stay tuned, and keep your fingers crossed. We may have won a major skirmish in an important battle, but we cannot forget that the war still goes on, and will continue to be fought until the U.S. Forest Service lives up to its lofty motto of "Caring for the Land and Serving People."
Up to this point, it has done neither.
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