Attorney Steve Young makes no apologies for ‘Deep Ecology’ suit

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Minneapolis attorney Stephen B. Young recently found himself in the headlines when he was sanctioned for bringing a highly publicized case on behalf of a loggers’ group. The suit alleged that environmental groups have persuaded the U.S. Forest Service to embrace the “religion” of “Deep Ecology” in violation of the Establishment Clause of the U.S. Constitution.

Born: Nov. 2, 1945

Education: Harvard Law School, J.D., 1974; Harvard College, A.B., 1967; International School of Bangkok, 1963

Employment Highlights: Minnesota Public Policy Forum, president; Winthrop Consulting, president; Personnel Decision, Inc. and Trial Behavior Consultants, Inc., senior consultant, 1995-97; Mahoney, Hagberg & Rice, P.A., managing director, 1993-94; Honorary Consul-General of Singapore, 1990-96; Court-appointed arbitrator for Minnesota in Prudential Securities, Inc. litigation, 1994-96; Hillstrom, Bale, Anderson, Young, Polstein & Pearson, Ltd., partner, 1991-93; Winthrop & Weinstine, partner, 1988-1990, of counsel, 1986-88; Hamline University School of Law, dean, 1981-87; Harvard Law School, assistant dean for student affairs, 1978-80

Professional Affiliations: Minnesota State Bar Association; New York Bar Association; United States Court of International Trade Bar; American Arbitration Association; National Association of Securities Dealers Board of Arbitrators

Hobbies/Personal: Reading, history, travel

Family: Wife, Pham Thi Hoa, and three children, Ian, Warren and Antonia

While Young acknowledges his theory was novel, U.S. District Court Judge James M. Rosenbaum called it something else — “frivolous.” On May 26, 2000, Rosenbaum ordered Young to pay a total of $5,000 to two environmental groups that Young sued. Rosenbaum did not mince words in his decision imposing sanctions, calling Young’s positions “wrongheaded” and “logically untenable,” and stating that his arguments had “no place in federal court.” (The full text of the judge’s order for sanctions appears on page 9.) Young plans to appeal the decision.

Young is a well-known figure in the Minnesota legal community and no stranger to controversy. In addition to being a former dean of the Hamline University School of Law, he made an unsuccessful bid to be the Republican candidate for the U.S. Senate in 1996. Last year, he spearheaded a vigorous attack on the mammoth fee that the Minneapolis law firm of Robins Kaplan Miller & Ciresi collected as a result of the state’s $6 billion tobacco settlement — a battle Young ultimately lost.

In a recent interview with Minnesota Lawyer, Young spoke about his decision to take the loggers’ case, his reaction to Judge Rosenbaum’s decision and his crusade against the fee award made to Robins, Kaplan in the tobacco litigation.

Did you anticipate that the loggers’ suit against the U.S. Forest Service and a pair of environmental groups over timber sales in Minnesota’s national forests would escalate into a court battle over religion?

Absolutely. The whole point of bringing the case was to raise the issue of the theology [of Deep Ecology] in the middle of the environmental movement. [That theology] is out there and it needs to be discussed.

How did you become interested in Deep Ecology, and why do you feel so strongly that the public should be aware of its teachings? [My interest in Deep Ecology] came after years and years of interest in religion, history, jurisprudence, and why human beings do things. … Deep Ecology is something that’s been growing since the 1980s, but very few people are aware of it outside the environmental groups. As I learned [about the theology of Deep Ecology] I thought, “Oh my goodness, this is really interesting.” And [Deep Ecology led me to consider] a larger question in our time that came with the end of the struggle between communism and capitalism, …[which is,] what will fill the void of passions and causes as to how we organize society? Modern intellectual culture has undermined faith in traditional religions — so what will fill the spiritual void that many people feel? A lot of [what fills that void] is New Age, but a lot of it is a new sense of the environment and the human relationship with the cosmos. There is clearly a fit between Deep Ecology and the whole general movement of the modern world. Something powerful is going on here, but it’s not being written up in the newspapers — people aren’t talking about it. So I wrote a long paper on it for the Center of American Experiment.

How did your knowledge of Deep Ecology lead you to represent Associated Contract Loggers, Inc. in its suit against the U.S. Forest Service, Superior Wilderness Action Network (SWAN) and Forest Guardians?

I was really intrigued by Deep Ecology and I ran into the loggers by accident up in northern Minnesota through friends of friends. [The loggers] began describing what was happening to their families and their companies and to northern Minnesota because of what the environmental groups were doing. From their perspective, the Forest Service was being bent away from its congressional mandate [by] environmental groups. [The environmental groups] were in constant litigation [aimed at] trying to force their philosophies — including the philosophy of what is called “zero-cut,” which means no logging and is an aspect of Deep Ecology — [on the Forest Service]. As I listened to the loggers I immediately saw a series of links from Deep Ecology to [the] actions [of its followers] to the Forest Service to the Establishment Clause of the U.S. Constitution. It’s like two plus two is four. Very straightforward.

As evidenced by Judge Rosenbaum’s order of sanctions, at least some members of the legal community don’t view your arguments in the logging case as being very straightforward. Had you considered other approaches to the lawsuit, other than the Establishment Clause arguments, that may have been better received in the legal community?

We considered a number of approaches and they all had drawbacks. There were serious issues of standing because the Forest Service doesn’t owe a particular duty to any given individual to provide them with a certain amount of timber for harvest. And that’s the argument that the Justice Department on behalf of the Forest Service has used in this case. We talked about the Forest Service not following the mandate of Congress, but [the Forest Service] came back and said, “Yeah, but we have discretion. That means nobody has a claim against us for any particular outcome.” I think [the Forest Service’s response] is a fair conclusion as to what the law is.

At the outset of the case, Ray Fenner, executive director of SWAN, characterized the lawsuit as “ludicrous.” Did that statement or sentiments expressed by others cause you to re-evaluate your case?

Not at all. Usually, in politics or in a
rgument, when somebody goes after you and not your arguments, it means your arguments are pretty good. Fenner has never offered to debate me about the law or the statutes or Deep Ecology. Why not? Because [the environmentalists] want me stigmatized and slandered and smeared as a kook or an academic who’s off-the-wall. I feel that [the environmentalists] are afraid to talk about the merits of Deep Ecology because they know they won’t be able to persuade [Americans] that they should have the government use [the theology of Deep Ecology] to manage the forest. [Still, Deep Ecology] is entering into our politics through [Vice President and presidential candidate] Al Gore’s political campaign. Step one was last fall with the policy initiative by [President] Clinton to declare 43 million acres roadless. Gore has [said that] there should never be any logging on those 43 million acres, which embraces the “zero cut” philosophy. [Gore’s position] is contrary to the federal statutes because the federal statutes clearly permit logging.

U.S. District Court Judge James Rosenbaum dismissed the suit and ordered you, as the plaintiffs’ attorney, to show cause why sanctions should not be imposed under Rule 11 and the court’s inherent powers. Were you surprised that the judge felt so strongly that the lawsuit lacked merit?

I was very surprised — because [the lawsuit] doesn’t lack merit. … This whole complaint is bread and butter constitutional law. There’s nothing unusual about it at all. … The position of [the environmental groups] was that even though…all the things in the complaint were true, the loggers still had to lose. We were prepared for [Judge] Rosenbaum to [rule for the environmental groups on] a narrow, technical point, and [had planned to] appeal [that ruling] up to the 8th Circuit. But for the judge to come back … and say I needed to show cause was a big surprise.

Do you accept Judge Rosenbaum’s ruling that the environmental groups were not state actors subject to constitutional claims?

No, not at all. Our understanding of the law of state action is that when somebody tries to involve the government to impose a constitutional wrong on another private party, then that first person is a state actor because they have to use the government. We argued that SWAN and Forest Guardians are seeking to have the government impose Deep Ecology. The most important point, which Judge Rosenbaum has not given much attention to, is that this lawsuit does not challenge anybody believing in Deep Ecology. … The issue under the Establishment Clause is when does somebody take their religious belief and get the state to impose that belief on other people who don’t believe in it? For example, the loggers — and most Americans — don’t believe in Deep Ecology. [The majority of Americans] believe that the forest should be managed according to the normal statutes, common sense and science.

After sanctions were imposed you were quoted as saying that you were “disappointed in the judge.” What did you mean by that statement?

I was trying to find a word that would reflect my emotional feelings but not get me into too much trouble. “Disappointed” came to my mind. [I am] disappointed in the sense that [Judge Rosenbaum] should have seen from all the papers and affidavits that all the things you have to do to avoid Rule 11 sanctions I had done. There was research, there were investigations, there were cases, there were facts. I talked to other lawyers. And yet still the judge wanted to impose sanctions.

Judge Rosenbaum, in his order imposing sanctions in this case, made several statements that were highly critical of your position. He said your response to the defendants’ Rule 12 motion was “disingenuous in the extreme” and a “travesty of Rule 12 jurisprudence.” He also generally described your positions as “wrongheaded” and “directly contrary to well-established constitutional law,” and remarked that they have “no place in federal court.” Do you take any of the judge’s harsh statements personally?

The answer is yes and no. Any time a federal judge says something like that [about] you, it hurts. And when someone says something negative about you that you don’t think [is true], that hurts. On the other hand, I don’t take the comments [personally] in an emotional way because I have to keep a cool head in order to stand up for my clients. My principal moral, ethical and professional obligation — and my personal desire — is to be an advocate for my clients. If you let your own personal feelings get too involved, your judgment gets affected and you let your clients down. [Still, it was a bit awkward] having the sanctions [issue] unresolved during the period when I was writing the appellate brief for my clients.

As a former law school dean and a former senatorial candidate, are you at all worried that the negative publicity that this case garnered and the imposition of sanctions will diminish your standing in the legal community?

The quip on that, which a couple of people have mentioned to me, is “any news is good as long as they spell your name right.” I don’t know if that’s true or not. The more substantive answer? First of all I have been surprised and gratified at the degree of support I have received across the board from lawyers — [and even] from people on the street. Lawyers come up to me in the skyway saying, “Steve, I hope you’re going to appeal this. That’s what appellate courts are for.” … I’m a Republican, I’m a Twin Cities lawyer, I’m Harvard educated, [I was] born and raised on the East Coast, and [when I went] to northern Minnesota, I got a standing ovation from the rangers — the core of the DFL Iron Range. That’s touching.

You’ve been involved in other cases where your arguments were not well-received, including the widely publicized challenge to the fees collected by Robins Kaplan Miller & Ciresi in the suit against tobacco companies. You weren’t directly involved in the suit against the tobacco industry, so what led you to challenge the fees?

I was appalled at the fees earned by the Robins firm after not a lot of legal work. In a no-bid contract, a handful of lawyers took a fee of $660 million when our ethical rules say a lawyer’s fee shall be reasonable. Period. …[A reasonable fee in the tobacco case] was not, in my personal judgment, $660 million. [Young arrives at this figure by combining the $440 million the firm received for representing the state with the amount it received for representing Blue Cross/Blue Shield.]

In the two [fee] agreements — one with the state and one with Blue Cross/Blue Shield — the work done by the Robins firm is defined. It’s the same work. In other words, the Robins firm got paid twice to do the same work.. … I went to the Board of Professional Responsibility, which turned me down saying I was being personal and political. … A friend of mine, Roger Conant, was very bothered by [the settlement and the fees earned by the Robins firm]. He thought the tobacco settlement was terrible public policy.

What was your motivation in continuing to challenge the fee agreement after several courts rejected your arguments? [The fee agreement is] just wr
ong. It violates the Constitution. It violates the statutes. I deeply believe it’s unethical for the law firm to keep public money.

The Court of Appeals overturned Hennepin County District Court Judge Peter Albrecht’s imposition of $12,000 in sanctions against your clients, finding that they made reasonable assertions concerning standing, the attorney general’s powers, the meaning of public funds and other existing law. What was your initial reaction to the sanctions?

I considered the imposition of sanctions to be an abuse of judicial discretion. Citizens and a lawmaker stand up to raise constitutional issues about $440 million and they get sanctioned? This is just wrong. If you don’t like them, rule against them fast and say they’re wrong.

Ciresi has criticized you for losing your bid for the Republican nomination for the U.S. Senate in 1996. Now that Ciresi is a senatorial candidate, do you have anything you would like to say?

Mike liked to call me a “failed candidate for the United States Senate.” I am waiting for the time when I can call Mike Ciresi a failed candidate for the U.S. Senate and welcome him to the club. And I’m counting on the good DFL voters of the state of Minnesota to quickly send Mike Ciresi to join me in this distinguished group of folks.