Beware of Zombie Lawsuits: Reporting by the Fairfield Sun Times

I am not sure I understand all this, but I really like the fact that the writer, Darry Flowers, took the time to delve below the surface and do some digging ;). A curious story. I also liked how he explained the legal terms (the people on this blog can check if he’s correct). My favorite sentence is italicized. The whole story is here and an excerpt below.

The meeting was cordial. When Mark Bodily presented a slide in his presentation that implied that the Blackfeet were present when the Rocky Mountains were created, Lease operator Joe Large, with RPM Geologic, challenged the assertion. Large stated that the Rockies, from a geological standpoint, were created “54 million years ago” and pointed out that no humans were present at the time of their formation.

After a brief exchange, Bodily told Large he was applying “Western” science, with Large responding that there is no such thing as Western science, only science.

During the presentation by a Forest Service staffer, the reason for the continued suspension of the leases in the Badger – Two Medicine area were said to be the result of a “pending lawsuit” by several environmental groups against the Forest Service. The lawsuit challenged the process by which the lease was granted.

After the meeting, the Sun Times asked for, and received, confirmation that a 1993 lawsuit was the reason for the current suspensions.

Finding it odd that a lawsuit in a Federal Court would still be pending after 21 years,
the Sun Times searched legal databases for any current litigation regarding the lease. Other than the current suit before the D.C. District Court filed by Sidney Longwell, no cases were found. The Sun Times asked Ms. Strathy, via email, to provide details on the case. She responded with a copy of the original complaint: National Wildlife Federation, et al v. Dale Robertson, Chief, United States Forest Service, et al. Filed in the U.S. District Court in Great Falls, the case was heard before Senior Judge Paul G. Hatfield.

While the Sun Times is still working to acquire a complete copy of the case, the litigation appears to be a tactic by the plaintiffs and defendants to delay the drilling of the approved well.

The Sun Times was able to obtain a copy of a fax that was sent from the “USDA FS Lewis & Clark NF,” according to the heading inserted by the fax machine at the Forest Service office in Great Falls. The 21 page fax was sent at 14:20 (2:20 p.m.) on February 20, 2002.

Pages 20 and 21 of the fax are the dismissal, with prejudice, of the lawsuit. The dismissal was signed on March 10, 1997 by Judge Hatfield.

Judge Hatfield’s order reads, “IT IS HEREBY ORDERED that the [Court] Clerk administratively terminate this action in the records, without prejudice to the rights of the parties to reopen the proceedings for good cause shown, for the entry of any stipulation or order, or for any purpose required to obtain a final determination of the litigation.”

The order continues, “If, within SIXTY (60) days of a determination by Congress as to whether the properties involved in this litigation should be included in a wilderness designation for the area, the parties have not reopened for the purpose of obtaining a final determination herein, the action shall be deemed dismissed with prejudice.

DATED this 10th day of March, 1997.”

While the Forest Service claims the case is pending, the cover letter of the fax, in a handwritten comment from a Forest Service staffer, reads “…here is probably the most pertinent correspondence since ’96 or so…” Another faxed page uncovered by the Sun Times seems to indicate that the office for Lewis and Clark National Forest received the Judge’s dismissal on March 20, 1997.

The judge’s order has two parts, both dismiss the environmental groups’ case, but the first part of the order states the dismissal is without prejudice. To dismiss a suit without prejudice means that the plaintiff in the case may bring the matter before the court again.

In the second part of the order, Judge Hatfield has given Congress sixty days to begin the process to make the properties a wilderness area. Congress did not approve the request by Senator Baucus. As a result, the case – after the sixty days – became dismissed with prejudice, the legal concept of res iudicata, meaning that the matter cannot be raised again by the same parties.

Whether the case was dismissed with or without prejudice has no bearing on the fact that the case itself no longer has any legal bearing on the suspension. Sun Times contacted the Clerk’s office at the Federal Court in Great Falls to further confirm the case’s status. According to that office, the case is closed, and has been moved to the Federal Court Archives in Denver, Colorado. The office did confirm that the case was dismissed in 1997. Asked if, within the sixty days after this judge’s order any subsequent complaints were filed that are affiliated with the case, the clerk said that the case was closed. Since the judge’s order in 1997, “there has been no activity with this case.”

If the case was closed in 1997 and no litigation has been undertaken since, this may raise questions about the statute of limitations and how it may affect any further legal challenges to Mr. Longwell’s drilling permit.

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