WELC Newsletter - Fall 2015

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Big win for youth & climate change Victories for lynx, wolverine & salmon New cases to protect wolves, forests & public health How you can take action and more...

Fall 2015

Defending the West


BOARD OF DIRECTORS Lori Maddox President Karin P. Sheldon Vice President Kevin Kirchner Treasurer Phil Katzen William Leaphart Mike Lindsay Dr. Lisa Manning Peggy Nelson Dyan Oldenburg Corrie Yackulic

STAFF Erik Schlenker-Goodrich Executive Director Elizabeth Berg Foundations Coordinator Matthew Bishop, Attorney Rocky Mountains Office Director Susan Jane Brown, Attorney Wildlands & Wildlife Program Director Natalie DeNault Development & Administrative Assistant Pete Frost Attorney Dina Gonzales Administrative Coordinator Shiloh Hernandez Attorney Laura King Attorney David Lawlor Director of Development Jackie Marlette Development & Communications Coordinator John Mellgren Attorney Lyndee Prill Finance Officer Andrea Rodgers Attorney Dr. Thomas Singer Senior Policy Advisor Brian Sweeney Communications Director Kyle Tisdel, Attorney Climate & Energy Program Director Cover Photo of Mt. Rainier in Washington by Blanes JM.

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WESTERN ENVIRONMENTAL LAW CENTER

Looking Across the West

Erik Schlenker-Goodrich, Executive Director On a sweet summer morning, I found myself on a canoe on the Hudson River—just downriver from the land that I grew up on—with my 6-yearold son, Silas. We paddled along the shore with the tide, around the ruins of old ice docks that jutted out into the river and had been reclaimed by Mother Nature, and into a cove, just a few yards from its stony shore. The water calm, we lifted our paddles, drifting quietly with the current. After a few moments, my son turned to me and asked, “Hey, Papa, do you remember the song about beauty?” My son, with this simple question, inspired me and gave me hope that the rising generations of humans on this fair Earth hold the wisdom and capacity to heed the axiom, as articulated in Aldo Leopold’s 1949 classic, A Sand County Almanac, “that land is a community is the basic concept of ecology, but that land is to be loved and respected is an extension of ethics.” In Washington state, several industrious kids—armed with highly effective Western Environmental Law Center Attorney Andrea Rodgers and the help of our partner organization, Our Children’s Trust—demonstrated this wisdom and capacity, petitioning Washington state’s Department of Ecology to regulate climate pollution and to help nudge the state toward climate stability by the end of the century. When Ecology denied that petition, these kids did the unexpected:

they took the government to court and won, sending ripples across Washington state and the country. Much work remains to ensure Washington state does the right thing and indeed puts itself on a path towards climate stability. But at WELC, we know with a certainty that our ability to safeguard the climate—not to mention the forests, rivers, and wildlife of the American West—depends on our ability to cultivate an ethic of conservation and respect in all of humanity but, in particular, in our children. It is this ethic that leads to action. And it is action that leads to change. As I stared in wonder at my son for being so aware of the world, for asking a question of such precocious potential, and as we at WELC help provide unparalleled legal capacity to Washington state’s youth, I cannot help but have even more hope for the future. Yet I also recognize the urgent need, now, in partnership with you, to deepen our advocacy. Ultimately, the protection of our climate, of the wildlands, wildlife, and communities of the American West, must not be an aspirational goal deferred to the next generation, but an ever-present reality. For the West, Erik Schlenker-Goodrich


Big Win for Youth and Climate Movement in Washingon State

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e’ve known for a long time that climate change is a problem we have to do everything in our power to solve. The science community continually reconfirms this fact, and WELC is dedicated to taking meaningful action. Seattle WELC Attorney Andrea Rodgers, in league with Our Children’s Trust and a group of brave youngsters concerned about their climate future, took this fight to Washington state—and won. This story begins with a request from youth petitioners to the Washington Department of Ecology—the state agency with the power to regulate carbon dioxide emissions. We requested that Ecology write a rule to keep atmospheric carbon below scientifically recommended levels for a stable climate. The first time around, Ecology denied our petition, so we went to court to convince a judge that the law requires Ecology to act. Few expected us to win, especially after setbacks in neighboring Oregon. In June 2015, Judge Hollis Hill thrilled

Representing eight youths, we filed a lawsuit against the state of Washington demanding that it take action on climate change—and we won! the climate community by ordering Ecology to reconsider our petition for a rulemaking. But we didn’t stop there. We knew that to accomplish this huge task we needed powerful allies, so we appealed to Gov. Jay Inslee. In July, Andrea, OCT, and the kids sat down with the governor to discuss the case. It was a great experience for the kids, and days later Gov. Inslee directed Ecology to act on climate.

Now we’re tasked with keeping Ecology on track to use the best available science for its emissions reduction targets. The agency has made it clear they would prefer to take the easy road and set benchmarks based on old science that won’t sufficiently protect the climate. We’re challenging that notion because this is an area in which we cannot afford to compromise.

PROTECTING OUR CLIMATE “The court’s decision brings a feeling of triumph, but I know there is still a lot of work to be done. We may have won a battle, but we’re still fighting a bigger war.”

-Aji Piper, 14 years old (pictured in back row) WELC Attorney Andrea Rodgers and her youth clients.

FROM THE MAILBAG ...

Thank you for all your hard work. Wish there were more like you. - Richard and Judi Schiller of Fifty Lakes, MN FALL 2015

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Victories for Lynx and Wolverine

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anada lynx, listed as threatened under the Endangered Species Act, are susceptible to traps and snares left for other types of animals, most commonly bobcats.

In 2013, WELC filed litigation on behalf of three organizations against the Montana Department of Fish, Wildlife and Parks for its failure to protect imperiled lynx from trapping.

Our win protects lynx from accidental harm and death in traps set for bobcats.

WELC Attorney Matthew Bishop negotiated an extremely impressive settlement that was adopted by the state this July. The settlement establishes a “lynx protection zone” restricting types and placement of traps in occupied lynx habitat in northwest Montana and the Greater Yellowstone region. Also,

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bobcat trappers must now check their traps at least once every 48 hours.

regulations or lynx protection zone boundary if necessary.

This victory achieves enhanced monitoring and reporting, and a state commitment to update the

The settlement also extends a wolverine trapping ban for two years and requires scientific consultation before reopening.

Thanks to our legal work, the trapping of another vulnerable animal, the wolverine, has been blocked since 2012. This new agreement also maintains the current closure of the wolverine trapping season in Montana for an additional two years.

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BUSINESS AND DONOR PROFILE “Montana is one of the last refuges for rare and sensitive wildlife, clean air, clean water, and magnificent landscapes and WELC is here on the ground protecting our treasures with excellent, science-based legal acumen. We are damn lucky to have them.” - Connie Poten and Andy Sponseller Co-owners of Ten Spoon Vineyard and Winery Missoula, MT Our vineyard and winery are certified organic, and we add no sulfites to our wines. We grow French-American hybrids--Marechal Foch, Frontenac, Leon Millot, and St. Croix for reds, and St. Pepin and LaCrosse for whites. 3

WESTERN ENVIRONMENTAL LAW CENTER

Photo by iStockphoto.com/Jim Kruger.

The ESA holds state governments responsible for preventing accidental killing of listed species, but at least 15 lynx were caught in traps in Montana since 2001.


Photo by Mark Byzewski.

Protecting Greater Chaco Canyon from Fracking

We’re working on the ground and in the courts to stop fracking in New Mexico’s Greater Chaco region and the San Juan Basin.

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ith so much at stake in northern New Mexico’s Greater Chaco region and opposition from the oil and gas industry as well as the federal government, we are pulling out all the stops to protect this sacred, ancient landscape and its modern-day communities. This year, WELC Attorney Kyle Tisdel sued the Bureau of Land Management over mass approvals of unstudied fracking in the Greater Chaco region. The lawsuit challenged over 260 individual drilling permits based on BLM’s failure to consider the cumulative impact that such development will have on the greater landscape, and we are in the midst of seeking an injunction to stop new permits while the court case plays out.

Our work has struck a chord with New Mexico’s congressional delegation, inspiring Rep. Lujan and Sens. Udall and Heinrich to ask Interior Secretary Sally Jewell for a more concerted effort to protect Greater Chaco from oil and gas development. In June, Sen. Udall hosted Interior Deputy Secretary Mike Connor for a tour of the Chaco region in hopes of emphasizing the need for more careful planning of oil and gas drilling. We’re working hard to keep New Mexico leaders engaged in this issue amid huge industry spending to maintain the harmful status quo. This year, the oil and gas industry launched a $250,000 ad campaign in New Mexico to distract from the dangerous environmental and health impacts of fracking. Additionally,

the New Mexico Oil and Gas Association has agreed to “donate” $800,000 to BLM’s Farmington Field Office to hire people to process applications for even more drilling in the sensitive Greater Chaco region. Mahatma Ghandi said of making positive change: “first they ignore you, then they laugh at you, then they fight you, then you win.” These significant industry expenditures show that we’re making progress toward halting irresponsible oil and gas development, and we need your help to win this fight. Tell your representatives you oppose unstudied fracking in Greater Chaco, and please support WELC in our legal efforts to stop this assault on native communities, irreplaceable cultural resources, and public health.

TELLING THE CHACO STORY IN SANTA FE, NM

From left: Erik Schlenker-Goodrich, Daniel Tso, Rebecca Sobel, and Walter Nelson.

FROM THE MAILBAG ...

WELC hosted an event in Santa Fe in early July with tribal and client partners to tell the story of exploitation in Greater Chaco. After an exhibition of Walter Nelson’s photos of Georgia O’Keefe’s famous Black Place—a location threatened by ongoing fracking—WELC’s executive director and others fielded questions from an interested crowd. We concluded with a screening of The Solstice Project’s film, “The Mystery of Chaco Canyon.” Thank you for all you do! You’re very appreciated! - Mariel Margery Johnson of Taos, NM FALL 2015

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Case Highlights from Across the West

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Protecting Colorado’s North Fork Valley

Since 2010, WELC has fought to keep oil and gas out of Colorado’s bucolic North Fork Valley. Bordered by the Black Canyon National Park, the fertile valley is famous for its organic agriculture, vineyards, and outdoor recreation. In 2013, WELC filed litigation to prevent the piecemeal approval of fracking without sufficient environmental review. As a result, the U.S. Forest Service and BLM agreed to complete a joint environmental analysis of future development. This summer, WELC Attorney Laura King submitted detailed comments on behalf of several conservation groups regarding two projects involving 175 new wells, and calling for a hard look at the impact these wells will have on the Valley’s air, water, and wild spaces, as well as on the “social costs of carbon”—i.e., how this contributes to the broader climate crisis we face.

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Victory! Salmon Saved in Oregon’s Rogue River Basin

Big Win for Youth and Climate Movement in Washington State p. 2

8 Protecting Greater Chaco Canyon From Fracking p. 4

Suction dredge mining in southern Oregon’s pristine rivers harms threatened wild coho salmon. Suction dredging sucks up the river bottom through a vacuum-like hose and can remove or destabilize spawning gravel and create undue turbidity reducing already diminished wild fish populations. Because it has issued permits for new suction dredging despite harms to threatened coho salmon, we took the Rouge River-Siskiyou National Forest to court. Our case was dismissed over a technicality, but in May 2015 WELC Attorney John Mellgren successfully argued to the Ninth Circuit the lower court’s decision was a mistake. Thanks to John’s good work, we will soon return to district court to argue the merits of the case.

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Protecting Fish and Flows in the Similkameen River

WELC is litigating to challenge an attempt to reinstate power generation at Enloe Dam on the Similkameen River in Washington state. Water rights for the dam violate the instream flow rule for the Similkameen River and longstanding principles of Washington water law. In addition, economic analyses show the project would not make financial sense. WELC is also pursuing removal of the dam to protect the aesthetic beauty of Similkameen Falls and to save the community from bearing the costs of an uneconomic hydroelectric project. Removing Enloe Dam would open up nearly 200 miles of steelhead habitat in the Upper Columbia River system. Dam removal has the potential to boost Upper Columbia River steelhead populations to the degree that the fish could potentially be removed from the endangered species list.

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Victories for Lynx and Wolverine p. 3

9 Ensuring the Mexican Gray Wolf Can Roam Free In The Wild p. 7


WELC is working in all 11 Western states providing legal services to more than 135 clients—for free.

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Stopping Coal Mine Expansion in Montana

Industry is seeking approval to more than double the size of the Bull Mountains coal mine in central Montana and gain access to 176 million more tons of coal. Long-wall mining, used here, causes cave-ins and pollutes groundwater needed in this case by nearby ranching operations for livestock. WELC Attorney Shiloh Hernandez is appealing DEQ’s failure to consider whether the proposed mine expansion will violate water quality standards. The appeal also takes the agency to task for approving the mine expansion despite evidence that the mine would cause long-term violations of water quality standards with no clear means to mitigate this problem.

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Victory! Forests Protected in Southern Oregon

WELC helped defeat a timber industry lawsuit to drastically increase timber harvest on lands once owned by the Oregon & California Railroad in southern Oregon. The timber industry has long argued that these public lands should be managed only for timber production and not multiple use values such as clean water and wildlife. In June, a federal appeals court overturned a 2013 ruling that forced the BLM to offer 500 million board feet of timber for sale annually and left the U.S. Fish and Wildlife Service without a science-based method for assessing timber harvest effects on the threatened northern spotted owl. This is a huge victory for rational, science-based management as well as local communities and wildlife.

YOUR LEGACY: THE WEST Leave a lasting legacy by naming Western Environmental Law Center as a beneficiary of your will, trust, or other estate plans. To learn more about our endowment fund or any of our legacy giving options, please contact us at 541-255-0209. Western Environmental Law Center’s tax identification number is 93-1010269. Please consult your financial advisor or estate planning professional for assistance in determining the planned giving option that is best for you.

10 Working for Clean Air by Reducing Methane Emissions p. 8

11 Advocating for Clean Drinking Water in Washington p. 9

Photo Credits: 1. Jessica Newley 2. Plains and Prairie Potholes Landscape Conservation 3. BLM 4. Roberto Verzo 5. Jeremy Hiebert. Legacy Giving Photo by Tom Bricker.

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Ensuring the Mexican Gray Wolf Can Roam Free in the Wild We’re fighting for a future in which a wolf’s howl can still be heard through the chilled night air.

Back in 1998, WELC had to sue the federal government to initiate a Mexican gray wolf reintroduction program with a goal of achieving a population of 100 wolves in a 5,000-acre area in Arizona and New Mexico. But later, wildlife biologists learned that based on a high death rate largely from shooting, 100 wolves is not enough to establish a viable, self-sustaining population.

Act considerations for this animal.

Despite this scientific knowledge, in January 2015, USFWS issued a final rule that reclassified the Mexican gray wolf as an endangered nonessential experimental subspecies of the gray wolf, and issued a final rule revising the Endangered Species

These rules and designations cap the population of Mexican gray wolves in Arizona and New Mexico at a level too low for recovery, banish the wolves from their needed habitat, and make it easier for them to be killed by federal agents and private landowners.

Photo by Mark Dumont.

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t WELC, we recognize the importance of the iconic Mexican gray wolf to the landscape of the Southwest. In fact, we think top predators like these are essential to the natural order of the wild. Sadly, the folks in charge of managing the Mexican gray wolf at the U.S. Fish and Wildlife Service don’t seem to agree.

WELC Attorneys John Mellgren and Matthew Bishop filed suit in July 2015 to compel USFWS to raise the population cap, remove the nonessential designation, reduce the permissible killings, and provide science-based geographic zones for the wolves to live so they can truly recover and roam free.

THANK YOU TO OUR SUMMER LEGAL INTERNS “Interning at WELC was an exceptional experience that allowed me to protect the resources I value. I also learned about the trials, tribulations, and great satisfaction that come with being a public interest attorney.” - Kelsey Estabrook Univ. of Oregon Law School, J.D. Candidate May 2016

Summer Interns from top left clockwise: Lauren Bushong and Chyna Dixon (Taos office), Kelsey Estabrook (Helena office), and Zyanya Breuer (Seattle office). 7

WESTERN ENVIRONMENTAL LAW CENTER

WELC makes a conscious commitment to training the next generation of environmental attorneys. This summer we hosted four interns working side-by-side with our attorneys in many of our offices across the West. These young professionals worked on issues ranging from protecting wolves to salmon resiliency in Puget Sound to stopping coal, oil, and gas development in the interior West. Our legal internship program is open to 2L and 3L law students from any law school. Learn more at westernlaw.org/about-us/clinic-summer-interns.


Working for Clean Air by Reducing Methane Emissions

Nowhere is this more startling than in the Four Corners methane hot spot in northwest New Mexico, where a cloud of this “supercarbon” the size of Delaware looms over a dense industrial energy production zone. Across the country, atmospheric methane is a climate and public health hazard, and WELC is hard at work to get this problem under control. Since the earliest stages, we have been engaged with the Obama administration in crafting rules to curb this pollution and natural resource waste on public lands. The key to reaching our goal is to know where all this methane comes from. Industry-reported data tells us the oil and gas industry is the largest source of methane pollution in the U.S. Oil and

gas companies allow methane to leak from poorly maintained equipment, deliberately vent it to the atmosphere, and burn it as a waste product from oil drilling in a process called flaring. The federal plan we worked so hard to help formulate is twofold: 1) Establish a Bureau of Land Management rule to address methane waste from existing infrastructure; and 2) Establish an Environmental Protection Agency rule to regulate methane emissions from oil and gas infrastructure built or modified after the rule enters into force. EPA released its rule in July, and BLM will follow shortly. The EPA rule focuses on pollution, while the BLM rule will tackle public resource waste. For both, the results are cleaner air for improved public health, reduced greenhouse gas emissions, and increased taxpayer revenue. We like the sound of that.

WELC LEADS METHANE REFORM In July, we convened 25 traditional and non-traditional New Mexico ally organizations to strategize support for new federal rules that target methane emissions from the oil and gas industry. We received a great response and WELC Senior Policy Adviser Dr. Thomas Singer (pictured in blue shirt) will lead a state campaign to tackle the Four Corners hot spot and methane leaks across the nation.

Methane Quick Facts & Why To Care • Methane is 87 times as potent as carbon dioxide in causing climate change. • Methane gas wasted every year from drilling on public lands equals the climate pollution from 37 coal-fired power plants. Kept in the pipeline, it is enough energy for 12 million homes. • The oil and gas industry is the nation’s SECOND LARGEST industrial source of climate pollution and the LARGEST source of methane pollution. • Oil and gas companies knowingly leak methane from poorly maintained equipment, deliberately vent it to the atmosphere, and burn it as a waste product from oil drilling. • WELC is leading a coalition of more than 100 regional and national environmental, health, sporting, and faithbased groups to secure stricter rules to reduce the oil and gas industry’s methane emissions on public lands. • Together, we will protect the West’s natural heritage and safeguard the health of our communities.

Photo by Adam Cohn.

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ethane is a powerful greenhouse gas, 87 times as potent as carbon dioxide over a 20-year span in causing climate change, and it’s being invisibly released into the atmosphere at alarming rates.

FALL 2015

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Advocating for Generation Clean Drinking Water in Washington Training the Next of Environmental Advocates

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ashington state has a water quality problem. In 2011, the Washington Department of Ecology found that 44 percent of wells sampled in the Lower Yakima Valley contained nitrate concentrations exceeding the drinking water standard. In 2012, Ecology released results from

a 30-year study showing that nitrate concentrations in Whatcom County exceeded the maximum safe level in 29 percent of the sampled wells, with 14 percent at least double the legal limit. Nitrate pollution is a big deal. It is known to cause spontaneous

This map shows CAFO lagoon proximity to water bodies Puget Sound area. CAFO Lagoonsin in the Whatcom and Skagit Counties Blaine

Drayton Harbor

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The old permit expired in 2011 and Ecology has been working on a new draft ever since. Currently, only 1 percent of the industrial agricultural facilities in the state are covered by a discharge permit.

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Distance from CAFO lagoon* to nearest waterbody

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listed waters

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WELC is working with a large coalition to get Ecology to develop a strong General National Pollution Discharge Elimination System/State Discharge Permit for all medium and large CAFOs in the state. The permit must be designed to ensure that no pollutants are discharged into the ground and surface waters of the state.

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The primary cause of the pollution is clear. Manure applied or over-applied to cropland as fertilizer accounts for 66 percent of the nitrogen problem. Dairies called concentrated animal feeding operations (CAFOs) store liquid manure in “lagoons” which Ecology confirms are designed to leak nitrates into groundwater.

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These high levels of nitrates are forcing some Whatcom County residents to look for new sources of drinking water. The city of Sumas filed an application to add two new wells in hopes of escaping the pollution. Also, shellfish bed closures in Portage Bay, Drayton Harbor, and other areas in North Puget Sound have robbed residents of the income they depend on.

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Samish Bay

miscarriages, often-fatal methemoglobinemia (blue baby syndrome), anencephaly, diabetes mellitus, and peripheral neuropathy.

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Data Sources: National Hydrography Dataset (1:24,000), ! Washington State Department of Agriculture, Washington State Department of Ecology, USGS, Washington State Department of Health *Assessed in 2012

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**Date stamp 5/13/15

WELC Attorney Andrea Rodgers is working hard to ensure we get an excellent CAFO permit that protects the basic human right of safe, clean drinking water.

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FROM THE MAILBAG ...

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WESTERN ENVIRONMENTAL LAW CENTER

We support the work that you do and know that it is of utmost importance. - Stephen and Jill Paulson of Lowell, OR


You can TAKE ACTION with our Online Petitions

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e have a new way you can take action to safeguard the wildlife, wildlands, and communities of the American West. We have a variety of petitions available on our website that you can sign to make a difference in protecting the West’s treasured landscapes, iconic wildlife, and rural communities.

Please visit our website at westernlaw.org/takeaction and click on the links to take action on what matters most to you. Below are some of our petitions, and we frequently update the page with new opportunities to sign, so check back often or join our e-mail list to receive the latest news. You can join WELC’s online community by visiting westernlaw.org/sign. Thank you for taking action!

Take Action for WILDLIFE >

HELP KEEP WOLVES PROTECTED BY THE ENDANGERED SPECIES ACT

STOP THE FOREST SERVICE FROM LOGGING IMPERILED LYNX HABITAT

Take Action for WILDLANDS >

SAVE THE PROPOSED CRATER LAKE WILDERNESS FROM LOGGING

STOP THE PACIFIC CONNECTOR LIQUEFIED NATURAL GAS PIPELINE

Take Action for OUR CLIMATE >

SAVE THE GREATER CHACO CANYON REGION FROM FRACKING

ASK WASHINGTON STATE TO ENACT STRONG CLIMATE CHANGE RULES Photos: Mark Dumont, Keith Williams, Yumian Deng, iStockphoto.com/GregorBister, Steve Corbato, Larry Aten.

FROM THE MAILBAG ...

Thank you for all you do—your impact is many times greater than your size! - Eileen Su Tsai of Irvine, CA FALL 2015

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Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97401

NonProfit Org US Postage PAID Eugene, OR Permit No. 17

The Western Environmental Law Center uses the power of the law to safeguard the wildlife, wildlands, and communities of the American West. We envision a West with thriving, resilient wildlands, waters, and wildlife; a region powered by clean, renewable energy; and communities that are rooted in an ethic of conservation. Help Us Defend the West: westernlaw.org/donate If you would rather receive your newsletter electronically, please let us know by e-mailing info@westernlaw.org Recycle this newsletter by sharing it with a friend! Keep up with the latest news & happenings. Join the conversation on Facebook and Twitter.

facebook.com/westernlaw twitter.com/westernlaw This newsletter is printed on 100% recycled paper with soy inks.

Why I do what I do...

BY LAURA KING, WELC ATTORNEY

At age 10, I was self-consciously an environmentalist. I grew up in the Los Angeles area, in suburban sprawl on the edge of nature. My family lived among freeways, but also among foothills with teeth— those of rattlesnakes, bears, mountain lions, and coyotes. We caught the city’s smog in our lungs, but could also drive five miles through a sagebrush canyon to the sweet air of the beach. I loved the wild parts of my home and wanted to fix the rest. So, with my birthday and Christmas money, I donated to my favorite causes: wolves, dolphins, and California oaks. I became a vegetarian after reading that cows burp methane and poop water pollution. And I “published” (and circulated to my neighbors) a magazine called “the Weekly E.S.”— the Weekly “Environmental Stuff.” I do what I do inspired by my tuned-in, energetic younger self. I consider it my duty to her, as well as to my 2-year-old son, to keep in the forefront of my mind the truths she knew so well—that the world is beautiful and vulnerable and I have the power and responsibility to help.

Offices Headquarters: 1216 Lincoln Street Eugene, Oregon 97401 Ph: 541-485-2471

Other Locations: Helena, Montana | Santa Fe, New Mexico | Taos, New Mexico | Portland, Oregon | Seattle, Washington

www.westernlaw.org


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