How the Sue and Settle Process Works II : Who Gets Intervenor Status?

Thanks to Jon for starting this discussion with a post on “how sue and settle really works”. Thanks to Guy for giving us the link to who can get intervenor status and why. I asked Scott Horngren, of the American Forest Resource Council, if my memory was correct that sometimes timber folks can’t get intervenor status. Based on what he says, It seems rather arbitrary (and capricious? ;)) across circuits. Especially inconsistent, I think, is the sentence I italicized. I wonder if what Scott refers to as resource users also includes anyone whose uses are opposed by another group based on environmental concerns (skiing, hiking, ATV’s etc.)? Doesn’t seem very.. errr.. just..
Many thanks to Scott for his explanation:

You are correct that resource users have been denied intervention (and the ability to bring their own challenge as plaintiff to an agency NEPA decision) in the past, and it still can be a problem in certain circumstances. The decisions vary by Circuit so the approach is not identical across the entire federal court system. I agree that it is inconsistent of agencies and environmental groups in one breath to profess to want to hear the views and encourage the participation of all parties in agency decision-making under NEPA and the National Forest Management Act yet in the next breath oppose intervention of the same people who participated in the process when the agency decision is later challenged in court.

In the Ninth Circuit, only recently has the “none but the federal defendant” rule on intervention been overturned. The rule was judicially created in Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982) and extended to the Ninth Circuit in Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir. 1989). It essentially stated that in litigation challenging a NEPA decision (and later NFMA) there could be no intervention “of right” in the case because if the agency lost it was only the agency that would have to rewrite the NEPA decision or do additional analysis to comply with the law. It was not until 2012 in Wilderness Society v. United States Forest Service, 630 F.3d 1173 (9th Cir. 2012), that an en banc panel of the Ninth Circuit stepped in to reverse the judge made law that had been in place for 22 years. In that case motorized recreation users led by the Magic Valley Trail Machine Association were denied intervention in the Wilderness Society lawsuit challenging a Forest Service decision involving road and trail use by motorized vehicles. The Ninth Circuit reversed its long-standing position that only an agency can be a defendant (and thus no intervenors were allowed to defend the decision). I do not know the current status of the rule in the Seventh Circuit. In the D.C. Circuit is less clear whether resource users can intervene in cases, since unlike the Ninth Circuit, the D.C. Circuit requires a proposed intervenor to demonstrate it would have standing under the statutes in order to intervene in a case. As explained below courts often consider that resource users do not have standing to bring a NEPA case.

In addition, there is the issue of standing to bring a NEPA case. Ironically, in many courts environmental groups can challenge a NEPA decision as a plaintiff but resource users are precluded from doing so. In particular, under Ninth Circuit law someone with an economic interest does not have standing to challenge an agency NEPA decision. That would mean a rancher whose economic livelihood is dependent on a grazing lease could not challenging NEPA decision of the Forest Service to challenge that lease. The court’s reasoning is that NEPA is concerned with environmental protection and only those with an interest in protection of the environment can bring a lawsuit under NEPA. However, the Supreme Court has emphasized that NEPA is a procedural statute that does not dictate any substantive environmental result. So the correct law should be that anyone who participated in the NEPA procedures can be a plaintiff to challenge the inadequacy of the procedures. I expect that as with the “none but the federal defendant rule” on intervention under NEPA, the “only environmental interests can be plaintiffs in a NEPA case” rule will be eventually overturned. (This “standing’ aspect also becomes an issue if you want to appeal a court decision on the merits striking down agency action but the government decides not to appeal. The Ninth Circuit court takes the position that if you cannot demonstrate standing under NEPA, you can’t appeal the adverse decision if the government doesn’t, even though in the Ninth Circuit you do not have to demonstrate standing to intervene in the case in the first place).

Finally, even as an intervenor in a case, some judges preclude you from participating in settlement discussions. But if a settlement agreement is reached between the environmental group and the agency, an intervenor, whether involved in the settlement discussions or not, has a right to object to the settlement in the district court. And if the objection is denied, the intervenor can file an appeal challenging the settlement agreement. It is rare however that a court will overturn a settlement agreement between the principal parties of the case.

6 Comments

  1. Thanks to both of you for providing this summary about intervention. I knew it was ‘complicated,’ and thought I might do a little digging into the law, but better to hear it from a practitioner. However, I disagree with two points.

    “I agree that it is inconsistent of agencies and environmental groups in one breath to profess to want to hear the views and encourage the participation of all parties in agency decision-making under NEPA and the National Forest Management Act yet in the next breath oppose intervention of the same people who participated in the process when the agency decision is later challenged in court.”

    I would say it is simply good, collaborative decision-making for public agencies to use their discretion seek out opinions of all affected parties to inform their decisions. It is also simply a good (if not required) litigation strategy for government attorneys (a different agency) to use all available legal arguments available to win a case. That could include objecting to the inclusion of additional opponents.

    “The court’s reasoning is that NEPA is concerned with environmental protection and only those with an interest in protection of the environment can bring a lawsuit under NEPA… I expect that as with the “none but the federal defendant rule” on intervention under NEPA, the “only environmental interests can be plaintiffs in a NEPA case” rule will be eventually overturned.”

    This reasoning is actually part of a much larger history of case law in all federal courts that has created a requirement that plaintiffs be injured in a way that is within the ‘zone of interests’ of the particular statute they are accusing the government of violating. It would be misuse of the judicial branch to use courts to obtain results not intended by Congress.

    NEPA IS concerned with environmental protection. To allow parties to use it in court to oppose environmental protection should not be allowed. That being said, the threshold for showing an interest in environmental protection is pretty low. Motorized user groups have successfully asserted that concentrating motorized use in smaller areas has adverse effects. Counties have gained standing by arguing that lack of logging increases the risk of damage to the environment by fire.

    Generally the government has not seemed very aggressive in opposing standing in NEPA cases, except when it is clear that the interest is entirely economic. That would be the typical situation for timber interests.

    • Thanks Jon. If anyone’s interested, below is a really good article that breaks down a lot of these issues of standing, zone of interest, etc., and some inconsistencies in how these are treated by different appellate courts. Also discussed is Bennett v. Spear (SCOTUS case) where requirements for ESA suits (vs NEPA) may be relaxed. Standing (not just for intervenors, but also for plaintiffs) gets litigated a LOT, fwiw.

      http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1207&context=law_journal_law_policy

    • Jon, I have a different take on your statement
      “I would say it is simply good, collaborative decision-making for public agencies to use their discretion seek out opinions of all affected parties to inform their decisions. It is also simply a good (if not required) litigation strategy for government attorneys (a different agency) to use all available legal arguments available to win a case. That could include objecting to the inclusion of additional opponents. ”

      I agree that it’s a good strategy to “win a case”, I would argue that ” winning a case” is not the same as “developing sound public policy” for a variety of reasons. When folks choose to use litigation as a strategy to promote a specific agenda, it seems to me it is simply about gaining leverage or power to promote specific outcomes. That’s probably why here in Colorado, we have a task force on oil and gas regulation so people could talk about the best solutions rather than using the “crap-shoot” (thanks for the terminology, JR!) of the court system.

      Now about NEPA. You said “NEPA IS concerned with environmental protection. To allow parties to use it in court to oppose environmental protection should not be allowed. ”

      I have two arguments regarding that. First is that if we go to Congressional intent in terms of plain English in the statute, we might read section 101:
      “in a manner calculated to foster and promote the general welfare, to create and main
      tain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. ”

      So it could be argued that “productive harmony” was the goal of Congress and it is not too far a step to say that you could argue that “not doing” some action is not “productive harmony.”

      Then there is section 102 and the analysis. It seems to me that plaintiffs ought to be able to argue that analysis is faulty no matter what their policy predilections. What am I missing about this?

  2. Congress said what it meant with NEPA. “The Congress, recognizing the profound impact of man’s activity on the interrelationships of all components of the natural environment, particularly … resource exploitation (among other things) … and recognizing further the critical importance of restoring and maintaining the environmental quality to the overall welfare and development of man … ” It was only responding to a subset of problems related to ‘overall welfare,’ and providing a specific means to achieving a broader end. The problem then was ‘too much’ emphasis on economic factors. To use NEPA to raise economic concerns as a barrier to environmental protection would turn NEPA on its head and defeat the purpose of Congress.

    You can pick at the words, but you have to interpret their meaning in the context of the Congressional purpose. That’s where the 8th Circuit went wrong – by using a dictionary definition of ‘human environment.’ In CEQ’s terms, the scope of NEPA is limited to “the natural and physical environment” and economic and social effects need only be addressed if they are “interrelated.” In the context of Congressional intent, that term must be interpreted to mean “aligned with.” It does not include social and economic effects of protecting the environment from physical impacts.

    I agree that ‘winning a case is not the same as developing sound public policy.’ You seem to be suggesting that the Forest Service use the legal system as a public involvement tool. They are trying that with the administrative objection process, but you can’t blame the Forest Service for any ‘inconsistency’ caused by defending itself against a lawsuit.

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