How the sue and settle process really works

This 6-page opinion includes a discussion of how courts decide whether to approve a consent decree.

The case also demonstrates the ability of intervenors to influence the outcome.  In this case environmental groups intervened in a lawsuit by motorized users over a travel plan decision.  Because of the intervenors, the court refused to approve the part of the consent decree that would have vacated that travel plan and allowed motorized use to continue while the Forest Service reconsidered the travel plan.  The intervenors kept the plaintiffs from getting what they really wanted.  (But the plaintiffs or the Forest Service could now reject the consent decree and continue the lawsuit.)

The court poses a hypothetical at the end:  “This analysis would change, however, if upon reconsideration the Forest Service finds flaws in the 2011 Travel Plan requiring changes. At that point, a strong argument could be made that the Plan cannot remain intact and should be vacated, reinstating the 1987 Forest Plan management scheme.”  The problem with this result would be that this travel plan is necessary to accomplish the 1987 forest plan direction to protect wilderness character, and reverting to the no-action alternative would be inconsistent with the forest plan.  That creates an equally strong argument the other way (in my opinion).

4 Comments

  1. Thanks for posting this, Jon. One of the more interesting court documents related to TMR cases. Will be interesting to see the actual result of the consent decree. Will the FS simply provide different, less-fraught justification for their decision. Or will they try to ‘negotiate’ by throwing plaintiffs a bone and approving one or more other motorized trails and updating the analysis in the hopes this avoids additional litigation? My guess is on the former, because it is the path of least resistance.

  2. I have a vague memory of some folks who wanted to be intervenors on something but weren’t allowed to (by the court?). Does anyone else remember this?

    Who decides who can be an intervenor and how do they decide it?

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