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Forest Service will pay legal fees for whistleblower's widow

Posted: Sunday, June 14, 2009

A U.S. district judge on Friday ordered the U.S. Forest Service to pay the legal fees for a Tongass National Forest whistleblower's widow in her lawsuit against the agency.

Judge John Sedwick of the Alaska District Court is the same judge who sided with Glen Ith, a Forest Service employee, in his 2006 lawsuit against the Forest Service over illegal road building on the Tongass.

After Ith filed that lawsuit and appealed two Tongass timber sales he had worked on, the Forest Service put him on administrative leave and investigated whether to fire him. Eight months into that forced vacation, Ith's wildlife biology job was eliminated in a downsizing. He died of a heart attack four days later.

At the time, the Office of Special Counsel, an independent government agency, was investigating whether the Forest Service had retaliated against this whistleblower. They closed the case when he died.

Ith's widow, Marketa Ith, would not let it rest.

She sued for the complete set of her husband's personnel files, many of which shed light on his superiors' discomfort with his criticism and their discussions of whether and how to remove him. She is being aided by Forest Service Employees for Environmental Ethics, a nonprofit that joined Ith in his Tongass appeals.

The Forest Service, in out-of-court negotiations, produced many of the documents and withheld others in part or entirety.

But in checking the document logs, Ith's attorneys found the agency had withheld some documents it shouldn't have. The agency had not actually produced some documents it said it had given her. One document referenced another that wasn't on the agency's log at all. And some of the documents - written by an agency ethics and personnel relations chief - contained instructions to destroy correspondence about Ith so it couldn't be used against the agency in court.

"Tell everyone not to keep e-mails related to this matter," wrote the chief, Melvin Shibuya, who is based in Albuquerque, N.M.

The agency gave up more documents and maintains there aren't more.

After such discrepancies, Ith would not take the agency at its word. She asked the U.S. District Court judge Sedwick to make the Forest Service swear under oath that it had produced all the documents and describe its search for them.

Judge Sedwick agreed with her and ordered the agency to do so by June 30.

"Based on the facts of this case, the court is not persuaded by the Forest Service's unsworn statement that it has made a good faith effort to respond to Ms. Ith's FOIA (Freedom of Information Act) request and that it produced all the documents listed in her FOIA appeal."

"The court is not required 'to accept glib government assertions of complete disclosure or retrieval,'" his order says, quoting a previous case.

Sedwick also noted that the Forest Service had not argued with Ith's demand for legal fees from the agency. He ordered the parties to work out the amount.

• Contact reporter Kate Golden at 523-2276 or kate.golden@juneauempire.com.



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