Xavier Beltran*

Abstract:  The Racketeering Influenced Corruption Act has increasingly been used to prosecute environmental protest groups. The increased use of RICO raises purposive and interpretative questions pertaining to the applicabilitye of RICO in the context of environmental activism. This note argues that RICO is not an appropriate response because it is not efficacious and likely only to fan the flames of eco-terror.

“Okay. Here’s one for you. A real conundrum. What is the difference between the Lone Ranger and God?”

Bonnie thought about it as they rattled through the woods. She rolled a little cigarette and thought and thought. At last she said, “what a stupid conundrum. I give up.”

Hayduke said, “There really is a Lone Ranger.”

—Edward Abbey, The Monkey Wrench Gang1


The Racketeering Influenced and Corrupt Organizations Act (RICO) was enacted as part of the Organized Crime Control Act of 1970.2 Despite RICO’s anti-mafia origins, the statute is currently being levied against non-profit environmental protest organizations that [*PG282]partake, sympathize with, or can be linked to popular demonstrations that disrupt the businesses of those interests targeted by their demonstrations.3 This use of RICO not only raises serious First Amendment concerns;4 it threatens the very existence of many law-abiding environmental organizations that are potentially exposed to the statute’s civil provisions for treble damages.5

Advocates for the use of RICO against environmental protest activity justify their position by pointing to the increased incidents of what is popularly known as eco-sabotage and what is developing into the catch-all category of eco-terror.6 In the courts and in their academic writings, such advocates skillfully argue their case by pointing to the statute’s textual meaning and its purposeful design to stamp out a broad range of undesirable group conduct.7

Indeed, what was once identifiable as direct action protest is today blurring into highly questionable protest tactics that have intermittently risen to the level of terrorism in the name of the environment.8 A resolution to this widely escalating general state of affairs, however, is not reducible to the courtroom. That is, the issue of whether such a use of RICO is supported by sound legal reasoning or interpretation, in light of the statute’s purpose, textual meaning, or the legislature’s intent, is irrelevant. For, “in the first place there is no agreement—in fact, there is rampant dissension—about which of these factors supplies the meaning of the law.”9 In addition, arguing over what RICO, as law, should or should not apply to will not resolve [*PG283]what really is of main concern—the increasing acceptance of radical thinking capable of morally legitimizing destructive activity.10 Put simply, the real problem for most is that eco-terrorism not only exists, but it is also on the rise.11

After a preliminary discussion in Part II on how RICO case law developed to cover environmentalist protest activity, this note will address, in Part III, the developments that led to the current state of affairs where environmental terrorism exists and how it has become secretly acceptable to many. Finally, in part IV, this note argues that due to the underground nature of eco-terrorist identity and organization, RICO will not put an end to eco-terrorist activity. Rather, if the application of RICO to environmental protest activity across the board continues, it will have the long-term effects of fostering eco-terrorism’s persistence and deepening its underground support system.

I.  RICO: From Mob Law to Protest Activity Liability

RICO was enacted as part of the Organized Crime Control Act of 1970.12 By this enactment, including RICO, Congress sought “the eradication of organized crime in the United States.”13 RICO’s definition of “racketeering” includes a long list of activities.14 In es[*PG284]sence, the list seeks to make unlawful as many organized crime activities as possible by including the following within the definition of racketeering: any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs; and, other related acts involving sports bribery, counterfeiting, theft from interstate shipment, money laundering, use of interstate commerce facilities in the commission of murder-for-hire, embezzlement from union funds, and trafficking in contraband cigarettes.15 To achieve this purpose, RICO prohibits: (a) investing income derived from racketeering activity in an enterprise that affects interstate commerce; (b) acquiring or maintaining an interest in an enterprise that affects interstate commerce by means of a racketeering activity; (c) conducting an enterprise through a pattern of racketeering activity; and, (d) conspiring to commit any of the above activities.16

[*PG285] RICO authorizes the government to impose criminal penalties.17 RICO’s penalties are severe, allowing successful plaintiffs to obtain treble damages and attorney’s fees.18 In addition, injunctive relief is available to RICO plaintiffs, including the right of a court to order the dissolution or reorganization of any enterprise.19

Despite the statute’s original purpose to specifically address the problem of organized crime, courts have interpreted its terms liberally enough to broaden the statute’s scope beyond organized crime.20 In particular, RICO has been stretched beyond its original purpose through the judiciary’s broad interpretation of what enterprises are liable under the statute. For example, despite an original conflict between circuits, the Supreme Court waived the requirement that enterprises prosecuted under RICO possess an economic motive.21 Consequently, the statute has been interpreted as applicable to the protest activity of anti-abortionists,22 and recently, to that of environmental protesters and the organizations that support them.23

[*PG286]A.  Judicial Interpretation and RICO’s Scope Beyond Organized Crime

The United States Supreme Court first broadened the scope of the Organized Crime Control Act’s RICO component in United States v. Turkette.24 In that case, the Court held that the natural language of section1961(4)’s description of enterprise “includes both legitimate and illegitimate enterprises within its scope.”25 The Court reasoned that if Congress had not intended the defendant’s illegitimate enterprise to fall within RICO’s scope, “it could easily have . . . inserted a single word, ‘legitimate.’”26 More important, the Court set the precedent for liberal interpretations of RICO by defining enterprise as “an entity, . . . a group of persons associated together for a common purpose of engaging in a course of conduct.”27 In particular, “an enterprise includes any union or group of individuals associated in fact.”28

In the wake of the decision in Turkette, the Seventh Circuit declined to restrict the scope of RICO in Haroco v. American National Bank and Trust Co.29 The court held RICO was unambiguous and that Congress purposefully employed broad language that should not be interpreted narrowly.30 The plaintiffs in that case alleged that the defendants, a bank, its director and its parent corporation used the mails in furtherance of a scheme to defraud plaintiffs by overstating the prime interest rates.31 The court did acknowledge that “it does not seem at all likely that Congress anticipated the application of civil RICO to improperly calculated interest charges by a commercial bank.”32 The court, however, found that because “Congress deliberately chose to employ broad terms which would defy judicial confinement . . . it does not seem fitting for [the court] to attempt to narrow the statute in ways which are nearly impossible to rationalize merely to exclude subjects of this kind.”33

The Second Circuit did not follow the path taken in Haroco. In Sedima, S.P.R.L. v. Imrex Co., it provided a standing requirement demanding that a RICO plaintiff allege a racketeering injury, an injury [*PG287]“different in kind from that ocurring as a result of the predicate acts themselves, or not simply caused by the predicate acts, but also caused by an activity which RICO was designed to deter.”34 Like Haroco, the dispute between the two companies in Sedima did not involve organized crime. The defendant was accused of “violations of 1962(c), based . . . on mail and wire fraud . . . [and] present[ing] inflated bills, cheating [plaintiff] Sedima out of a portion of its proceeds by collecting for non-existent expenses.”35 The Supreme Court, however, rejected the Second Circuit’s special standing requirement because Congress expressly left the language in RICO broad and had expressly stated that RICO was to be “liberally construed.”36

The Supreme Court expressly decided not to limit RICO strictly to organized crime in H.J. Inc. v. Northwestern Bell Telephone Co.37 In Northwestern, the customers of Northwestern Bell Telephone filed a class action suit against “some of the telephone company’s officers and employees, various members of the Minnesota Public Utilities Commission, and other unnamed individuals and corporations.”38 Northwestern Bell was alleged to have violated RICO through the bribing and illegal influencing of the Minnesota Public Utilities Commission to approve rates for the company in excess of a fair and reasonable amount.39 The Court held that the phrase “pattern of racketeering activity” does not require proof of multiple “illegal schemes”40 and that the predicate acts do not have to be “indicative of an organized crime perpetrator.”41 The Court then broadened the meaning of the phrase by interpreting it to merely require that a “plaintiff or prosecutor prove [a] continuity of racketeering activity, or its threat simpliciter.”42 In support of the interpretation, the Court referred to the fact that Congress could have easily enacted explicit limitations of RICO to organized crime but had opted not to do so.43

[*PG288] Notwithstanding the Supreme Court’s effort to liberalize the scope of RICO beyond organized crime, “a split developed among the courts of appeals on the issue of whether RICO requires ‘the racketeering enterprise or predicate acts of racketeering [to be] motivated by an economic purpose.”44 While the Third Circuit maintained that RICO did not require an economic motive,45 both the Second Circuit46 and the Eighth Circuit held that an economic requirement existed in RICO. 47

B.  Circuit Courts Split over Reigning in RICO’s Scope: Political Motive Considerations and Economic Motive Requirements

In the Third Circuit case of Northeast Women’s Center, Inc. v. McMonagle, a health center brought a RICO action against a group of anti-abortionists.48 The health center alleged the group’s acts of extortion, a violation of the Hobbs Act,49 as a RICO predicate offense.50 The Hobbs Act prevents the extortion of property rights,51 including the right to conduct business,52 and does not require an economic motive.53 Finding that any act indictable under the Hobbs Act is a [*PG289]predicate offense under RICO,54 the court held that RICO does not require additional proof of an economic motive if the elements of the RICO predicate offense have been satisfied.55 In particular, the court also found that the defendants were not immunized from punishment because they were motivated by their political beliefs.56

The Eighth Circuit interpreted RICO differently when it first considered an economic motive requirement in United States v. Anderson.57 In that case, county administrators were alleged to have accepted bribes and other benefits in a plan to defraud citizens.58 The court rejected the argument that defendants fell within RICO section 1961(4)’s description of the term “enterprise” because the enterprise was not an “association that is substantially different from the acts which form the ‘pattern of racketeering activity.’”59 The court interpreted the term to cover “only an association having an ascertainable structure which exists for the purpose of maintaining operations directed toward an economic goal that has an existence that can be defined apart from the commission of the predicate acts constituting the ‘pattern of racketeering activity.’”60

The Eighth Circuit revisited the issue in United States v. Flynn, where a defendant was alleged to have participated “in an organization which engaged in a series of violent crimes in an attempt to obtain and maintain control of various labor unions and to retaliate against leaders of rival groups, organizations and families for acts committed against the enterprise.”61 Relying on its definition of enterprise in Anderson, the court held that RICO requires that the enterprise be directed toward an economic goal.62 The court upheld the RICO convictions because it found that the enterprise in question fell [*PG290]within its interpretation of the term as a result of the organization’s activities directed at controlling labor unions.63

The Second Circuit established an economic motive requirement in United States v. Ivic.64 In that case, Croatian terrorists were alleged to have committed RICO predicate offenses as a result of having conspired to kill or injure the Secretary General of the Croatian National Congress, conspiring to transport and utilize explosives, and attempting to bomb several locations.65 The allegations against the defendants described the terrorists’ “criminal enterprise” as a RICO enterprise, whose primary object was that “the defendants would and did use terror, assassination, bombings, and violence in order to foster and promote their beliefs and in order to eradicate and injure persons who they perceived as in opposition to their beliefs.”66

The court first found that, because the term enterprise as used in subsections 1962(a) and (b) clearly refers to an “organized profit-seeking venture,” it must interpret the term enterprise to contain the same economic meaning as it has in subsection (c).67 The court based this first conclusion on the view that “when the same word is used in the same section of an act more than once, and the meaning is clear in one place, it will be assumed to have the same meaning in other places.”68 The court also concluded that the ordinary meaning of the words “corrupt” and “racketeer influenced” in the title of the statute have a familiar connotation to ordinary people as describing money making activities and therefore the statute demands an economic motive requirement.69 The court also found that Congress did not intend RICO to encompass non-economic activity because the statement of findings prefacing the Organized Crime Control Act do not cover non-economic activity.70 Lastly, the court was persuaded by the 1981 [*PG291]Justice Department’s Guidelines for RICO that require an enterprise to have an economic goal.71 The court, accordingly, held that RICO did not apply because neither the enterprise nor the predicate acts were economically motivated, but rather were politically motivated.72

The Second Circuit clarified its holding in Ivic when it revisited the issue in United States v. Bagaric.73 As in Ivic, the defendants in Bagaric were Croatian terrorist.74 These terrorists, however, committed murders, in an attempt to extort money and further their activities, in addition to their politically motivated bombings.75 Bagaric’s defendants were distinguished from the defendants in Ivic on the basis that they were motivated by political as well as economic goals.76

The court in Bagaric, first found that because the defendants employed the identical tactics which the dictionary uses to define “corrupt” and “racketeer,” the ordinary meanings of the terms covered [*PG292]the terrorist group at issue “which financed their violent activities through extortionate means.”77 The court, as in Ivic, then turned to RICO’s statement of findings to explain that apart from the reference to organize crime,78 the purpose of RICO is to stop activities that “drain . . . billions of dollars from America’s economy by unlawful conduct and illegal use of force, fraud, and corruption.”79 Specifying that the economic motive requirement is sufficiently satisfied if the purpose for committing the RICO predicate act is economically motivated and not the enterprise itself,80 the court concluded that RICO covered the conduct of the terrorists who committed extortion to gain money to support their cause.81 In addition, the court also noted that “the Ivic nowhere stated . . . that economic gain must be the sole motive of every RICO enterprise.”82

In United States v. Ferguson,83 the Court of Appeals for the Second Circuit reaffirmed its decision in Bagaric. The defendants, members of a group of self-professed revolutionaries known as “The Family,”84 committed armed robberies to support enterprise members and maintain safehouses.85 As in Bagaric, although the ultimate purpose of the defendants in Ferguson was non-economic, the crimes they committed were “economic crimes.”86 Quoting Bagaric, the court affirmed that RICO “merely [requires] ‘some financial purpose’ either to the criminal enterprise or the acts of racketeering.”87

C. Widening the Net (Setting the Trap?): Application of RICO to Protest-Activists and Their Related Organizations

Despite the efforts of the Second and Eighth Circuits to focus the scope of RICO, the United States Supreme Court opted to spread the statute’s field in NOW v. Scheidler.88 The defendant in that case, Pro-Life Action Network (PLAN), was a countrywide alliance of anti-[*PG293]abortion activists and organizations.89 PLAN’s objectives were to persuade women against abortion and to end abortion clinics.90 The suit was brought by a class of women’s groups, abortion clinics, and potential clinic clients.91 Plaintiffs alleged that the protesters conspired to use violence, threats of violence, and fear against an abortion clinic.92

Defendant’s actions were alleged to have the purpose of “induc[ing] clinic employees, doctors and patients to give up their jobs, give up their economic right to practice medicine, and give up their right to obtain medical services at the clinic.”93 Plaintiffs’ allegations listed: 311 blockades; 73 invasions of clinics; 383 acts of trespass on private property; 33 fire bombings and attempted fire bombings; 23 acts of arson and attempted arson; 11 acts of destruction of clinic property; 8 assaults and batteries on clinic staff and personnel; 84 acts of harassment; 25 burglaries and thefts; and 7 extortionate acts of interference with contractual relations.94 Finally, plaintiffs alleged that protesters were members of a nationwide conspiracy to shut down abortion clinics through a pattern of racketeering activity in violation of RICO sections 1962(a), 1962(c), and 1962(d).95

The defendants argued that their activities were not within the scope of RICO because the legislative history revealed that Congress intentionally based the selection of predicate offenses on the principal of “commercial exploitation” to “preclude . . . application [of RICO] to political and social protest.”96 Defendants also argued that RICO did not apply because the purpose of the statute as recognized by the Court’s previous decisions, “was to strike at the ‘source of economic power’ of organized crime.”97

The Court rejected defendants’ arguments that they were not within RICO’s scope and concluded that plaintiffs could maintain their RICO claims if the protesters “conducted the enterprise through a pattern of racketeering activity.”98 The majority found that 1962(c) and 1961(4), which define the term enterprise, showed that RICO [*PG294]does not require an economic motive.99 In particular, the Court reasoned that the language of 1962(c), stating, “any enterprise engaged in, or the activities of which affect, interstate or foreign commerce,” did extend to non-economically motivated enterprise due to the subsection’s inclusion of the words “enterprise . . . , the activities of which affect . . . commerce.”100 The Court noted that the definition of “affect” is “to have a detrimental influence on,” and therefore an enterprise could have a detrimental influence on interstate or foreign commerce despite an absence of profit-seeking motives.101

Moreover, the Court reaffirmed its decision in Turkette to interpret 1961(4)’s definition of enterprise broadly.102 “Looking to the statutory language, [the Court] found that ‘there is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals associated in fact.’”103

D.  RICO and Eco-Activists

After the extension of RICO to anti-abortionist protesters in Scheidler, it did not take long for private organizations and companies to employ RICO as a legal and financial weapon against other types of non-profit political advocacy and protest groups.104 Within two years of the Scheidler decision, RICO was turned upon animal rights activists in Huntingdon Life Sciences v. Rokke.105

The action arose out of an undercover investigation by Michelle Rokke, an employee of People for the Ethical Treatment of Animals (PETA), in a New Jersey laboratory owned and operated by Huntingdon Life Sciences, Inc. (Huntingdon).106 Huntingdon alleged that Rokke sought employment at Huntingdon’s animal testing facility in East Millstone, New Jersey by falsely representing that she was pursuing a degree in animal sciences, and that she randomly sought employment after driving by the laboratory.107 Huntingdon hired Rokke as an Associate Technician in the Cardiovascular Unit of the Toxicol[*PG295]ogy Laboratory, and she signed a confidentiality agreement before commencing work.108

Huntingdon alleged that Rokke was an undercover PETA operative who sought employment at Huntingdon only to investigate its animal testing practices.109 After working at Huntingdon for six months, Rokke resigned, and PETA commenced a public relations campaign against Huntingdon.110 With the information collected from Rokke’s investigation, PETA and its agents, Ingrid Newkirk, PETA’s President, and Mary Beth Sweetland, PETA’s Director of Research and Investigations, issued press releases, participated in interviews and released a videotape taken by Rokke in an effort to attack Huntingdon’s animal testing practices.111 Huntingdon alleged that Rokke’s employment at its facility and the subsequent dissemination of Huntingdon-related information by PETA and its agents were unlawful.112 In addition, Huntingdon alleged violations of RICO’s section 1962(a), (c), and (d).113 At issue for the court in this case was whether to grant the defendant’s motion to dismiss all three RICO claims for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).114

Huntingdon premised its 1962(a) claim by alleging that PETA itself was the enterprise and that “under the auspices, direction and supervision of PETA, Newkirk and Sweetland, Rokke received a salary from Huntingdon while employed there, which she turned over to PETA.”115 Defendants deducted the amount of Rokke’s salary from her PETA salary and “Rokke, therefore, aided and abetted by the other defendants . . . invested income and, upon information and belief, the defendants . . . reinvested that income, as well as the proceeds of that income directly or indirectly, in the operation of the enterprise in violation of 18 U.S.C. § 1962(a).”116

Huntingdon alleged that the defendants violated RICO’s section 1962(c) by “engag[ing] in a long-term pattern of racketeering activity.”117 Such activity included involvement in laboratory infiltration at [*PG296]Biosearch Company in 1990, the University of Pennsylvania in 1990, the Carolina Biological Supply Company in 1991, Michigan State University in 1992, and the Boys Town Research Hospital in 1996, coupled with the predicate acts of Rokke’s investigation of Huntingdon’s laboratory.118

Finally, Huntingon alleged that the defendants violated 1962(d) “by knowingly joining in a conspiracy to conduct the affairs of the criminal enterprise.”119 Specifically, Huntingdon alleged that “Newkirk, Rokke, and Sweetland, along with others known and unknown, knowingly joined in a conspiracy to participate in the conduct of the affairs of the enterprise PETA.”120

The court ultimately dismissed the 1962(d) claim, but denied the motions to dismiss the claims under 1962(a) and (c).121 In addressing the 1962(a) count, the court found that “Huntingdon [had] sufficiently alleged that income fraudently obtained from it by Rokke was invested in the enterprise, PETA.”122 Although the court found that considering Huntingdon’s alleged 1962(c) predicate acts alone—pertaining to the investigation by Rokke and the subsequent transportation of documents for use in press releases and direct mailings—would probably warrant dismissal of the claim, Huntingdon’s further allegations of the defendants’ past illegal acts in an open-ended scheme persuaded the court to conclude that the predicate acts alleged were sufficiently detailed to survive the motion.123 The court “further [found] that the charge esufficiently allege[d] a long-term method of racketeering activity as specified in H.J. Inc. [Northwestern] and Fourth Circuit case law.”124

The court’s decision to permit the civil RICO action to go forward against an environmental protest organization conducting what was essentially an undercover reporting investigation, identical to the kind of undercover reporting investigations newspaper and television news media conduct everyday, is rather troubling. First Amendment concerns notwithstanding, the consequences of such a policy—itself solely a result of RICO case law development as outlined above—were predictable: all interests confronted by any protest movement and its [*PG297]organizations could now potentially present almost any protest activity as a listed actionable racketeering activity available on the vast menu of the stretched statute. Consequently, in the wake of such developments, legal commentators jumped to advocate the use of RICO against a wide array of environmental organizations such as Greenpeace, Earth First!, the Animal Liberation Front, and the Sea Sheperd Society.125 Since then, RICO civil actions have been brought against the Animal Liberation Front, the Animal Defense League of New Jersey, the Coalition to Abolish the Fur Trade, and the Vegan Resistance for Liberation.126

E.  Conclusion

As a result of the development of RICO caselaw, the former anti-Mafia statute threatens non-profit environmental organizations with financially crippling treble damages.127 The exposure of such protest organizations to racketeering liability is a product of the judiciary’s broad interpretation of what enterprises are liable under the statute and, despite an original conflict among circuits, the Supreme Court’s waiving of a requirement that such enterprises possess an economic motive.128

The types of enterprises that are liable under the statute are basically any enterprises whose conduct constitutes racketeering for purposes of the statute, regardless of whether the enterprise is legitimate or not.129 In turn, what is an enterprise “includes any union or group of individuals associated in fact.”130 Hence, environmental organizations alleged to have acted in concert with non-member individuals are potentially liable.131

Since RICO, according to the Supreme Court, does not require such enterprises to possess an economic motive, a wide range of relatively simple traditional protest activities or conduct can expose environmental organizations to RICO liability should such conduct be deemed to constitute racketeering.132 For example, given that RICO [*PG298]case law allows violations of the Hobbs Act to also serve as predicate offenses constituting racketeering, simple protest acts or other such conduct that interferes with the right to conduct business can qualify as racketeering activity, thus raising liability.133

Consequently, as some observant commentators have pointed out, “it is not difficult to imagine what impact RICO would have had on Dr. King’s Southern Christian Leadership Council. Segregationist forces could have used the extraordinary damages provision to cut the financial legs out from under the movement.”134 Such an observation goes to the heart of essential First Amendment concerns and the value American society has always placed on social protest activity in general. However, questioning the validity, legality, or even reasonableness of the judiciary’s interpretation and consequent application of the statute is not at issue here. What is of concern is that the path chosen not only ignores the particular history and dynamics of the environmental movement, its radical fringes and its increasingly marginalized sympathizers, but also, if taken far enough, could unwittingly result in the further fostering of what such a policy seeks to eradicate: eco-terror.

III.  Environmental Radicalism: From Direct
Action to Eco-terror

The prominence of environmentalism is typically traced to April 22, 1970—the first Earth Day in the United States.135 As the environmental movement flourished, environmentalists began using litigation and lobbying techniques to promote the protection of the environment.136 The increased significance of litigation and lobbying to enforce environmental legislation spurred the growth of environmental organizations and their memberships.137 With growth, environmental organizations acquired corporate-like infrastructures and [*PG299]eventually shifted their emphasis from local grassroots action to national lobbying.138

In response, large interests, from the lumber industry to the oil industry, set out to persuade the public that the very “raison d’etre of commerce ha[d] changed, and to co-opt the environmental debate.”139 As environmental organizations became increasingly co-opted by the mainstream, disheartened environmentalists began to form their own direct-action grassroots organizations.140 By the early 1980s, the most visible of radical protest groups were Greenpeace, Earth First!, and The Sea Shepherd Conservation Society.141

A.  The Roots of Violence: Corporate Interests Seek to Impose Silence

From the outset, even Earth First!, generally portrayed by the media as the most militant of such groups, mainly sought to garner attention and raise awareness on environmental issues by carrying out confrontational, albeit nonviolent, protests and demonstrations.142 Although Earth First!, as a leader in the radicalization of environmental protest and activism, did advocate some aggressive tactics that included the destruction of property such as bulldozers, it nonetheless shunned the taking of human life in the furtherance of their cause, unlike typical terrorist organizations.143 Earth First!’s “advocacy of monkey-wrenching and tree-spiking was the reasoning and rationale behind labeling environmentalists as terrorists.”144 Monkey-wrenching is the sabotage or “ecotage” of property to stop ecological destruction.145 However, as activists explain, sabotage is violence against inanimate objects such as machinery and property, while terrorism is violence against human beings.146 Nevertheless, the confrontation between corporate interests and direct-action environmentalists has not been devoid of violence against human beings.

The earliest actual use of violence against human beings, such as beatings, death threats, and assassination attempts, can be traced to [*PG300]initial corporate reactions to environmental activists and their upstart grassroots demonstrations.147 The detonation of a bomb in Earth First! activist Judi Bari’s car, after several weeks of receiving death threats during a 1990 “Redwood Summer” campaign in Northern California, is the primary event which most scholars point to as the beginning of the violence.148 In the wake of the attempt on Bari’s life, the Movement Support Network at the Center for Constitutional Rights recorded over 300 suspicious incidents and 150 unexplained break-ins against social activist groups.149

In March of 1991, Pat Costner, director of Greenpeace USA’s science unit, became a victim of arson as a result of her attempts to publish a five-year investigation into toxic waste incineration.150 On April 7, 1992, Stephanie McGuire, who was a Help Our Polluted Environment (HOPE) campaign organizer against a Procter & Gamble cellulose mill, was knifed, beaten, and then raped by five unknown men dressed in camouflage.151 According to investigative reports, Macguire’s assailants explained their actions in their words, “this is what you get for talking about P&G.”152 By 1992, the Center for Investigative Reporting, logging over 100 reported incidents, had “discovered a pattern of death-threats, fire-bombings, shootings, and assaults targeting ‘green’ activists across the nation.”153 Then, on October 9, 1993, the decomposed body of Leroy Jackson, a prominent Native American environmentalist, was found inside his car.154 Jackson, a Navajo activist dedicated to confronting logging operations on the Navajo Reservation, had been receiving death threats over years.155

As the violence escalated against grassroots environmental organizations, the mainstream organizations back in Washington, D.C. suffered an unexpected moral defeat at the hands of the Clinton administration they had helped elect. Though expectations had been high for mainstream environmentalists entering the new administration, the somber realization soon set in that its most effective staff, co-opted from the mainstream, had simply become another piece of the [*PG301]bureaucratic machine responsible for a worse environmental record than either George Bush or Ronald Reagan.156

B.  Strategic Lawsuits Against Public Participation Target
the Grassroots and Supporters

As the mainstream of environmentalism became demoralized and increasingly on the run, grassroots organizations were left to take the brunt of what has been termed the “green backlash.”157 The backlash, coming from various sectors of society with interests opposed to those of environmentalism, not only applied the tactics of violence against grassroots organizations but also applied Strategic Lawsuits Against Public Participation (SLAPPs) to silence grassroots organizations and any mainstream organization that could plausibly be linked to them.158 SLAPPs traditionally took the form of libel, defamation and business damages claims.159

For the most part, SLAPPs were normally aimed at small-community based groups that have been targeted for stopping waste sites and development.160 For example, Dixie Sefchek, along with other members of her organization, Supporters to Oppose Pollution were SLAPPed for opposing unsafe practices of an Indiana landfill operator.161 In that case, the SLAPP claimed loss of income, defamation of character, and libel. It did not take long for better known activists and groups to be SLAPPed.162 For example, the Sierra Club was sued for $40 million by a timber company due to its decision to represent Native Alaskans seeking to block logging on traditional lands.163 Earth First! was also targeted when activist Darryl Cherney was SLAPPed by the Pacific Lumber Company for $25,000 for sitting in a redwood tree.164

C. Present Day Eco-Activists: Identity, Organization, and Support

The radical grassroots environmental organizations of the 1980s and early 1990s, such as Earth First!, Greenpeace, and the Sea Shep[*PG302]herd Conservation Society, were, to an extent, recognizable entities that carried much of the burden of pushing the environmentalist agenda in the wake of the environmental mainstream’s decline in influence.165 Most of these radical eco-activist organizations had two objectives: (1) use whatever peaceful means necessary to stop unabashed environmental destruction; (2) add a radical wing to the environmental political spectrum in order to empower what was left of the environmental mainstream with the ability to push its demands through the benefit of appearing relatively reasonable in comparison to the radicals.166

However, the present day eco-activists, such as the relatively-new Earth Liberation Front (ELF) and the revamped Animal Liberation Front (ALF), appear to differ from their predecessors largely as a result of the violent and legal persecution grassroots environmental organizations were exposed to in the 1980s through early 1990s. The newer splinter groups seem to have taken an even more underground approach in terms of identity, organization, and even support systems. More important, unlike the original grassroots activists, the currently most active of the newer groups, like the ELF, appear to have given up entirely on the hope that their own radicalization of environmentalism will provide mainstream environmental organizations with a better position at the bargaining tables of government.167 Instead, they appear to act as though the mainstream no longer exists and they, the eco-activists, are the only ones left to carry on the struggle.

1.  Identity and Organization

A March 1997 letter to the supervisor of Willamette National Forest declared that the ELF and the ALF had formed an official alliance to save forests and animals from what they saw as the ravages of humankind.168 But, who exactly composed the ELF and the ALF was left unclear. The fact is that “anyone who commits an act of environmental terrorism and claims credit on behalf of the Animal Liberation Front, or other underground groups, is automatically a member.”169 There are no membership rosters, no boards of directors, just [*PG303]a collective sentiment that is enough to inspire certain people to take risky action against certain powerful sectors of society.170

Taking their cue from the Irish Republican Army, eco-saboteurs organize into small, tightly knit groups called cells.171 The cells come together without leaders, delegating tasks on a need-to-know basis so that incriminating evidence is minimized.172 Their actions, then, are communicated to those willing to act as spokesmen such as the ELF’s mouthpiece, Craig Rosebraugh.173 Rosebraugh, receives anonymous communiqués and reports them to the media and the authorities. The most famous of such communiqués relayed by Rosebraugh involved the ELF and ALF taking credit for the $12 million 1998 arson of a Vail, Colorado ski resort undergoing expansion into federal lands that were the habitat of an endangered species of lynx.174

Understanding the identity and organizational complexity of such underground activity is further complicated by the fact that the activities of recognizable underground groups, such as the ELF or ALF, are also either supplemented or copied without central direction by individuals or small groups who combine for single or few acts alone. For example, in June 2000, a group calling itself the Anarchist Golfing Association broke into Pure-Seed Testing Company greenhouses and destroyed ten years worth of research on genetically modified putting green grasses.175 The group viewed golf as an elitist sport and the development of golf courses as a “destroyer of all things wild.”176 Another example of such mysterious acts is that of the anonymous duo calling itself the People’s Brigade for a Healthy Genetic Future that destroyed a helicopter used for aerial herbicide spraying over Oregon’s forests.177 Other sporadic actions have been attributed to identities known simply as Animal Rights Militia, the Earth Night Action Group, and the Farm Animal Revenge Militia.178

[*PG304] The mystery of who composes the Earth Liberation Front, the Animal Liberation Front, or any other underground environmental activist organization will very likely never be solved, the FBI has tried and gotten nowhere.179 This anonymity is in large part the result of how difficult and dangerous it has become for any single person concerned about the environment to participate in even the most peaceful of protests. Moreover, the loss of confidence in the environmental mainstream’s ability to have an effect in the halls of democracy appears to have further deepened not only the anonymity of the actor(s) in the underground, but also the underground’s popular support base.

2.  Support, Sympathizers, and Self-Recruitment

“We have no idea and the FBI has no idea. We can say there are over 7,000 environmental groups out there, with close to $100 million in donations, but how many of them are radical elements we don’t know.”180 Such a state of affairs, however, is not indicative of the kind of support the environmentalist underground today. Financial support and monetary gain are not an issue when compared to the “wink and nod” tolerance afforded to such activists by individuals and the public at large. Rather, keeping in mind the initial violence and SLAPPs that drove environmental activism underground, the support the present-day underground receives “falls more within a religious tradition of protesting against the establishment from a stance of moral superiority.”181

Such an unquantifiable type of support comes from regular citizens that are sympathetic to environmentalism and are aware of the powerful interests aligned against it, if not what those interests have been willing to do in the past. For example, it is reported that Oregon’s Senate President, John Kitzhaber drove a car with the bumper sticker “Hayduke Lives!” after the character in Edward Abbey’s The Monkey Wrench Gang in which eco-saboteurs destroy structures they feel despoil the land.182 Kitzhaber, who is reported to disapprove of radical eco-politics but embraces Hayduke’s spirit, pushed hard for [*PG305]fish habitat protections and is widely known for his recommendations to remove federal Snake River dams to save salmon.183

The implicit moral support of an inactive and incapable public can be traced to a general feeling of cynicism shared by many within the mainstream and the radicals about the political and legal system’s abilities to protect the environment.184 The feeling is, as environmental activist Jonathan Paul stated it, that “none of the processes work . . . like the legal process, litigation. We compare ourselves to the underground railroad, to some guerilla movements that are trying to free themselves from oppressive governments. The only thing that’s different about us is that we expand our thinking to other species and to the planet as a whole.”185 In the words of Tim VerHey, the assistant U.S. attorney who prosecuted ALF activist Rodney Coronado, “people are getting a sense that nobody is listening to them and they don’t have any control over our government or any decisions that are being made.”186

When exactly a person moves from passive moral support for environmental eco-terrorism to actively participating is difficult to ascertain. For example, in February, 2001 a self–annointed ELF cell formed by four Long Island teenagers was arrested in New York for torching construction equipment and vandalizing newly-built subdivisions.187 The four high school students were reportedly good students with academic interests in the environmental sciences.188 Beyond that, FBI investigators were clueless as to how the four students became convinced to engage in eco-terror.189

Past cases, however, suggest that one of the methods used by ecot-terrorists to recruit others is simply to place a telephone call to the right unaware individual. For example, in October 1986, Roger Troen, a sixty eight-year-old former Portland, Oregon elementary school teacher received an anonymous phone call asking him to steal research animals from two University of Oregon psychology labs.190 A few nights later, Troen loaded 100 rats, 30 mice, 11 hamsters and [*PG306]three rabbits into his Ford and headed for Portland.191 Troen believed that he was sought out for his sympathies perhaps as a result of his listed membership in an animal rights group in California.192

Somebody, of course, effectively recruited Roger Troen. In turn, individuals like Roger Troen also recruit themselves. However, unlike those who join run-of-the-mill political advocacy and protest groups, such individuals are not joining a typical or even recognizable organization because there are no membership rosters and no board of directors.193 Rather, what they are embracing is a collective sentiment that is enough to inspire people to take risky and dangerous action.194 As FBI special agent David Tubbs put it, eco-terrorgroups are “not a formed group like you know who the head is, who the officers are, who the constituents are.”195 Attempting to open even a criminal case against them, according to Tubbs, is “like trying to grab Jell-O.”196

III.  Discussion

Destruction of property such as burning bulldozers or new condominium developments is a crime of arson that could potentially take innocent lives in the process. Killing or threatening to kill a person is, obviously, also criminal. Such crimes should be taken very seriously as the crimes that they are. The stakes are further raised when such crimes are committed in the name of a political cause. This creates an even more troubling problem for everybody; namely, terrorism.

Political movements that turn to the extreme, however, do not exist in a vacuum. The Irish Republican Army and the Basque ETA did not come about overnight.197 There are many factors that can combine to produce a situation where political objectives become perceived as attainable only through extra-legal means. The coupling of two particular factors, however, is enough to provide the catalyst for the creation of such a situation.198 Those catalytic factors are, regardless of whether they are real or perceived, a political/legal system’s inability or unwillingness to provide meaningful access for a move[*PG307]ment’s agenda and the experiencing of violent repression against such a movement.199

After the sparks, the sustainability and later growth of extreme political movements that take to the underground will depend on the existence of various dynamics within and outside of the movement.200 Particular dynamics are certain to fuel a movement’s persistence and, or growth. For eco-terrorism, those dynamics are: a perception that the movement’s activists are the only or last real hope for the cause; a secretive identity, organization, and an ad-hoc system of self-recruitment or volunteerism; and, a popular support base sympathetic enough to privately accept the illegal activity as morally acceptable, if not as a lesser evil.201

Eco-terror violence has never risen, and hopefully will not rise, to the levels present in the terrorism produced by ethnic/religious conflicts in places such as Northern Ireland or the Basque Country.202 However, the shadowy history of eco-terror’s origins and dynamics suggests that eco-terror, albeit in a different context than that of ethno-violence, was sparked by the coupling of relatively similar catalytic factors.203 In particular, as discussed above in part III, environmental activists faced a violent repression from adverse interests during the 1980s and early 1990s.204 Such repression was followed by a considerable exclusion of environmental activists from the political and legal system as a result of the government’s co-optation of the environmental mainstream into practical irrelevance and the onslaught of SLAPPs against those left to protest.205 The combination of such events, consequently, sparked the phenomenon of eco-terrorism that we face today.

The liberal interpretation of RICO as applicable to protest activity does not help an already worsening state of affairs.206 Rather, given the particular dynamics of eco-terrorism, RICO’s application to pro-environment protest activity across the board will have the effect of further fueling what has already been ignited. In particular, the tre[*PG308]mendous threat of triple damages that RICO poses to environmental organizations that are involved in traditional protest activity but are not themselves engaged in eco-terror will have the effect of furthering the perception that the only effective means left are radical and extreme action.207 For example, the decision in Huntingdon to allow RICO litigation to move forward against an environmental organization engaged in undercover reporting akin to the undercover reporting conducted everyday by the established media contributes to a perception that the legal system has gone beyond criminalizing environmental protest.208 RICO’s propagation of that perception, if it is not yet a reality, further contributes not only to the growth of eco-terrorism’s popular moral support base among run-of-the-mill environmentalists feeling increasingly without recourse, but also to a widening acceptance of eco-terrorism’s identity as the only one left to effectively carry out the struggle.209

For those who take the step to self-recruit or self-appoint themselves eco-terrorists, RICO is not a threat.210 Triple monetary damages mean little or nothing to an individual or small group of individuals who decide to set fire to a $12 million ski lodge.211 It is safe to presume that such individuals are largely aware they risk everything for their extreme actions and, accordingly, will hedge liability by going deeper underground. The threat of RICO, however, places a choke-hold on an open, above ground, and otherwise legal protest organization.212

In effect, it is not likely that RICO will snare enough eco-terrorists to succeed as a deterrent to activists in a political movement already exposed to past violent repression and SLAPPs.213 On the contrary, because of eco-terrorism’s very development and dynamics, RICO will only catch those above ground protesters and organizations willing to risk the financial consequences of continuing to [*PG309]openly protest for the environment in a world were protesting has become equivalent to racketeering. The reasonableness of the judiciary’s interpretation of RICO aside, such a policy, unwittingly, does nothing to deter the escalation of eco-terror activity and everything to place this increasingly polarized situation in the control of the ideologues.


Unfortunately, it has proven futile to engage the judiciary to reconsider the merits of an economic motive requirement and/or a narrower definition of what enterprises should fall within RICO’s nets. Many commentators, to their credit, have done so and, in the process, have fleshed out many of the pitfalls in the statute’s currently overly-broad interpretation.214 In all likelihood such meritorious, albeit traditional, efforts to engage judges and legal practitioners through legal academic writings have fallen upon deaf ears. For, as the noted legal scholar Pierre Schlagg has made painfully clear, most judges and practitioners don’t even read law reviews anymore.215

Despite the likelihood of this Note falling victim to the same fate as the other writings addressing the stretching of RICO in general, this Note urges a particular reconsideration of the assumed wisdom of RICO’s use against environmental protest. The argument here is not that the statute cannot possibly or “reasonably” be interpreted as broadly and liberally as it has been to encompass environmental protestors. Rather, given the particular history and dynamics of environmental activism, this anti-mob statute should not be interpreted as it now is if the ultimate goal is truly to discourage eco-terror.

Recently, the current administration announced to the world that American industrial interests are first and concerns over the environment should be placed on hold.216 Without addressing the unexplained causal link between the source of current financial downturns, largely attributable to the stock markets’ runaway craze with the non-polluting Internet service industry of the late 1990s, the current presidency’s policy threatens what remains of environmental regulations and policies—the new sudden enemies of our comfort.217 Evi[*PG310]dently, concerns over global warming, depleting fish stocks, and decreasing forest lands stand in the way of more oil and other resources to be ripped out of national lands to keep our SUVs, golf courses in the desert, and air conditioners running at full speed.

Many of the world’s governments have already publicly decried this about face on promises made by our government and society to change or at least ameliorate our environmental and energy policies. With the Kyoto Agreement on pause, pre-1950s water quality standards soon to be back on the books, and traditional energy interests already outbidding each other for the new big pay day in Alaska and the West, it is more likely than not that environmental protest activity can be expected to mobilize. Should the uncontrolled use of the anti-mafia statute ignore the particulars of current environmental activism and enter unrestrained into the coming political debate over the environment, RICO should not be reasonably expected to blow out the flames of eco-terror. Rather, given the statute’s potential for misuse in its application against both non-eco-terrorist and eco-terrorist environmentalists, the expanded use of RICO will likely fan the flames of—what is undesired by all sides—terror.

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