Zinke forest bill would require lawsuit bonds, reduce timber-sale analysis

It’s unlikely that Congress will pass this, but it is worth discussing the bill described here be The Missoulian:

“Zinke forest bill would require lawsuit bonds, reduce timber-sale analysis”

“The bill text and number were not available at press time. But in his statement, Zinke said it would boost Montana’s timber industry by allowing the state to contribute to a revolving fund that the Forest Service could use for reducing wildfire threats.

“It would also limit analysis of forest projects proposed by collaborative groups to “action” or “no action” alternatives, rather than multiple choices. And it would require litigants who challenge collaborative projects to post cash bonds to cover the administrative costs of a lawsuit.”

Alliance for the Wild Rockies director Michael Garrity called the bonding requirement unconstitutional.

“If a bond is required, only rich people will continue to assert their First Amendment right to challenge government decisions,” Garrity said.

Unconstitutional?

16 Comments

  1. Pingback: OP-ED: Pioneering forest reform | Not Without a Fight!

  2. Mr. Garrity has a point. But right now, groups funded by rich people often hold up projects that help working-class people not in terms of the grandiose “government decisions” but specifically “collaborative timber projects that meet certain specs on national forests.”

    Perhaps there could be a means test by reviewing the litigants’ funding stream specifically for each lawsuit, and if ,in fact, the lawsuit is funded out of the pockets of non-rich people/groups, the requirement could be waived. Something like “if you’ve got it, put it on the table.”

  3. Just another attempt to bypass consensus, and go straight to compromise. Collaboration, as an educational tool, hasn’t quite led to a consensus, yet. Our efforts should include educating our lawmakers, as well. There will always that problem of implementing any landscape-scale projects with temporary employees, hired right off the street. That is a reality that Congress always forgets when crafting bills like these.

  4. Pretty sure the action/no action change would violate FACA as well if the the only action alternative considered was that which came from a collaborative. It’s already a close call in the cflrp context.

  5. Why might it be unconstitutional to require that a litigant in a land-management case post a bond?

    Cornell University’s Legal Information Institute (https://www.law.cornell.edu/wex/injunction):

    “There is a balancing test that courts typically employ in determining whether to issue an injunction. The defendant’s 5th Amendment due process rights are weighed (heavily) against the possibility of the defendant becoming judgment-proof, and the immediacy of the harm allegedly done to the plaintiff (i.e., how badly does the plaintiff need the injunction). When it is possible, the defendant must always be put on notice of the injunction hearing, and the duration of the injunction is typically as temporary as possible. Additionally, in many jurisdictions, plaintiffs demanding an injunction are required to post a bond.”

    What’s special about environmental cases?

    • It wouldn’t be unconstitutional. I think perhaps Mike Garrity was referring to pay-to-talk as being at least counter to the spirit of the 1st Amendment. Though probably our current “money is speech” Supreme Court might disagree. Anyway, in NEPA cases there’s a “general rule” that bonds are not required or are nominal, because it presumably reflects congressional intent that plaintiffs are aiding the public in enforcing federal environmental policy rules by way of the courts. Requiring large bonds would “stifle the intent of NEPA”. Still, the courts have some discretion, it’s not a hard and fast rule. Most courts consider posting of large bonds to be unreasonable.

    • It doesn’t sound to me from Mr. Garrity’s quote — only rich people will continue to assert their First Amendment right — like he’s talking about substantive due process concerns. But rather, that the law would discriminate against the 1st Amendment right to petition the government for the redress of grievances. However, outside of the Supreme Court that was constitutionally established, all of the lower courts are creatures of statute, and thus, the rules can be amended by statute. If access to the courts were a fundamental right, or discriminating between those who had access to the court fell under a suspect classification, then there would be an argument. But having money or not isn’t a suspect classification. It’s pretty widely acknowledged that the legal system of the U.S. is a pay to play system. Because it’s not, the law could be challenged, but it would be reviewed under the rational basis test, meaning that the plaintiff would have to show that government lacked a rational basis for the law. Pretty low bar, which the government nearly always hurdles right over.

    • The bond in this case isn’t to cover losses or costs to the defendant, instead the bond is for the government’s attorney’s fees. That would arguably be unconstitutional under Boddie v. Connecticut precisely because the defendant is the government and the bond was designed as a barrier to court access.

      • well, not exactly, take a look at (old but still pretty accurate) http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2151&context=lawreview

        “In theory, the court is to set a bond in a sum that will adequately protect the defendant from the costs and damages caused by the issuance of a wrongful preliminary injunction.”

        A good, more recent article: https://www.hunton.com/files/Publication/2e2131a6-ff93-4877-8839-b8a8f85d1e10/Presentation/PublicationAttachment/d1f87b44-4f05-4cb4-b970-bffaead2cba2/How_Extraordinary_Is_Injunctive_Relief_in_Environmental_Litigation.pdf

        “Under Rule 65(c) of the Federal Rules of Civil Procedure, a party seeking an injunction must post security “in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” On its face, Rule 65(c) provides no exceptions. Although plaintiff environmental organizations often obtain relief from the bond requirement based on their alleged lack of substantial resources and their status as parties allegedly seeking to promote the public interest, defense practitioners should be prepared to challenge those allegations.”

        That’s one reason plaintiffs generally and pre-emptively include a short paragraph about bonds in their injunction motion, e.g., here’s one I’ve used:

        “D. NO BOND SHOULD BE REQUIRED IN THIS CASE. Because of the potential chilling effect on litigation to protect the environment and the public interest, federal courts have consistently waived the bond requirement in public interest environmental litigation, or required only a nominal bond. See People ex rel. Van de Kamp v. Tahoe Regional Plan, 766 F.2d 1319 (9th Cir. 1985) (no bond); Wilderness Society v. Tyrrel, 701 F.Supp. 1473 (E.D. Cal. 1988), reversed on other grounds, 918 F.2d 813 (9th Cir. 1990).”

        I don’t think Boddie v. Connecticut is particularly on point, for several reasons, one of which is that the bond requirement wasn’t “designed” as a barrier to court access (though it could have that effect) but rather to protect the defendant (even if it’s the govt)

        • I was referring to H.R. 2644, which isn’t limited to suits for injunctive relief. So it raises a different issue than FRCP 65 bonds. Boddie is on point for H.R. 2644 because by Zinke’s own words it was designed to stop “predatory” litigation. I agree with you that if the courts find a public interest exception as in FRCBP 65 that would suffice, but H.R. 2644 doesn’t provide leeway for that exception. And not sure how you can say it wasn’t “designed” as a barrier to court access. What other purpose would it serve? You can implement a fee shifting provision without posting the fees before the case proceeds. I know of no other example of a plaintiff posting attorney’s fees (not a costs bond) before the case against the government can proceed… To be clear, we’re not talking about damages, which bonds prior to injunctions would cover. Only the government’s “costs, expenses, and attorney’s fees.”

  6. In layman’s terms…give it to me straight doc…how exactly would posting a bond reduce litigation? I’ve always been hazy on performance bonds. “Posting a bond” seems to be the preferred litigation cure of the Montana timber industry, but what damages would enviros pay? I assume they would forfeit bond if the the injunction would be lifted and they didn’t prevail in court? Judge Molloy wanted the AWR to post a bond on, if I remember right, the Rat Creek Project years ago…but that disappeared. In that case it was fire salvage, and I assume the bond would have covered the value of the deteriorating wood, but what about a “green timber” sale. The wood is still good two years later. Does it pay legal fees of the defendant? Does the the timber purchaser get the forfeited bond to cover lost mobilization?

    I wish someone would share a “possible scenario” or two.

  7. What would Mr. Garrity have to worry about? All their lawsuits are about substantive claims, right? Of process and science? What could possibly go wrong?
    Right now, the plaintiffs really have no skin in the game. Slam up a boilerplate, put a stamp on it, hire a sheister — the idea is to inflict time-value costs on others. Waste the time of the agency. Make the contractor sweat equipment payments. Hope the sale burns, or if it’s salvage, hope everything checks and loses all value. That’s the point of this stuff. There’s no risk for AWR et al, that all falls on the other side.

  8. “New species listings and new bad press take a terrible toll on agency morale. When we stop the same timber sale three or four times running, the timber planners … feel like their careers are being mocked and destroyed — and they are. So they become much more willing to play by our rules. … Psychological warfare is a very underappreciated aspect of environmental campaigning.” K. Suckling, Executive Director, Center for Biological Diversity.

    A labyrinth of laws (more than 93 at last count), regulations, directives, executive orders, and judicial mandates (many conflicting) direct and restrict the management of the timber resources on our national forests.

    Using these laws to mock and destroy careers and to lower agency morale has proven to be a hugely successful (and quite profitable) approach to controlling the management of our public lands. The frustration of hours of make-work on repetitive mindless “environmental analyses” and appeal-proofing routine timber sales under multiple unclear laws and shifting judicial opinions has had its impact. In the 2010 report on federal employee morale (http://bestplacestowork.org/BPTW/rankings/overall/sub) the U.S. Forest Service ranked 217th out of the 224 agencies studied.

    The principal law used by litigants is the Equal Access to Justice Act (EAJA) codified in 28 USC §2412 and 5 USC §5045. The law provides for a “one way fee shift” or “American Rule” in which the defendant (Government) pays the legal costs of the plaintiff (organization or individual) prevails. However, if the defendant (government) prevails the plaintiff is not required to pay costs or other losses caused by the lawsuit. Under this arrangement, suing the feds is a sound money-making strategy, and the environmental activists have taken full advantage of that fact. A peer-reviewed article in the Journal of Forestry (http://www.safnet.org/documents/jof006112696p.pdf), that discusses the impacts of this law in some detail, points out that “Frequent EAJA claimants often possess considerable financial resources calling into question how the purposes of the law have evolved in the last 20 year.

    The principal adverse impact of serial litigation is not the financial cost to the government; rather it is the prevention or delaying of treatment urgently needed to reduce fire hazard and mortality, and to restore and enhance forest health and diversity, natural habitats, and (especially in the west) water yield. Additionally, legal obstructionism not only harms the natural environment but is also causing grave damage to the human environment through job losses and industry shutdowns, community and family disruption and local government insolvency.

    It would seem that requiring a two-way fee shift (English Rule) (by amendment to EAJA? )rather than a one-way shift would be the most direct and efficient way and to discourage obstructive litigation.

  9. There is a way around the bonding requirement:

    “Zinke said he intended that the language determining what is or isn’t participation in a collaborative group to be vague in order to encourage broader participation by stakeholders. The Alliance for the Wild Rockies, for example, would be invited to participate in a collaborative group, and showing up at meetings would constitute participation, Zinke said.”
    http://www.flatheadnewsgroup.com/hungryhorsenews/zinke-bill-takes-aim-at-frivolous-timber-lawsuits/article_1e01d6d8-0b94-11e5-9fc9-4f608feb20b0.html

    The ‘barrier’ in this case would be having to attend endless meetings with government bureaucrats (and their sympathizers). Same Constitutional answer? I imagine there could be some creative workarounds to superficially comply with this requirement.

    • I would want to impose a “good faith” requirement, where all members must work towards a valid compromise, to get “standing”. Indeed, that might make for some interesting “theater” but, I doubt that would stop the most-determined serial litigant. Like I’ve said before, I’m not in favor of government “end-runs” around the laws. The real solutions still are in the middle, somewhere.

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