Settlements: Behind the Scenes I

settlement I’ve been remiss at keeping up with some things.. One is moving things from the “new topics” tab to this area, so that more people can see them and weigh in. So here’s this one:

Laura Jackson asked:

“I would just really like to know, if anyone capable can honestly say, why the USDA Forest Service settles in some natural resources-oriented litigation when they have a chance to really prevail. Perhaps it is to save taxpayer money, which is a good, sound reason. Or perhaps, plaintiff’s know that more losses will be damaging to their cause…so they try to settle, and generally succeed due to the USFS wanting to save time and costs. The savings to the Public is the only valid reason I can think of to settle. But perhaps those who participate more regularly in this blog- those with a smidge more legal expertise- can enlighten me and other readers. No case or cause in particular, just an observation of late. Thanks!”

Larry said:

I’m sure that one of our legal experts can verify this but, it seems like the Forest Service reaches a settlement only when they have already lost in court. I also think that a winning litigant could decide not to enter into settlement proceedings, preferring the court to decide what the Agency can, and cannot do, under the decision. I’ve seen the Forest Service have to pay undocumented legal fees for the Plaintiff, too, in those settlements. I’d like to see FULL transparency in such matters, myself.”

Jon Habersaid:

““They” is the Department of Justice. They settle when they become convinced they are likely to lose. That may be obvious at the outset from the complaint, and they tell the FS to withdraw the decision. It may happen after a preliminary injunction goes against them, which often tips a judge’s hand. Sometimes it is after a court decision to agree on the relief, rather than risk what a court would decide. Or anywhere in between. Cost (and resources) is a consideration in how much risk they are willing to take and how long they stay in the game. And you can’t rule out politics and changing administrations as being a factor in some cases.”

Laura said:

Thanks Larry and John – I should have been clearer. I was mostly referring to instances where the Forest Service (or other Government agency) had already prevailed in a lower District court (e.g., not had any injunctions issued/already been granted summary judgment) but was still waiting for an appellate court to hear Plaintiff’s appeal of the lower Court’s ruling and issue an opinion. I’m guessing that Plaintiff and the Government choose/chose to settle in those instances to save time/taxpayer funds…or perhaps the issues the Government is being ‘sued’ over are no longer viewed as worthwhile arguments by the Plaintiff(s), and they don’t want to waste their own time or contributor funds. Or perhaps they don’t want the potential case law that could result. Regardless, it seems like the agency(ies)/DOJ would be better served to not settle and to allow the follow-through to occur at the appellate court level. Again, thank you for the feedback…”

Sharon says: I think there must be an incentive for settling (closing a case) other than simply crossing it off the list, but since everyone is busy, maybe that is enough incentive. Because lawyers like to settle, and the idea of settling seems to have its own momentum. Going court takes a lot of time and effort. This is a very rational approach from the bureaucratic perspective

I have seen very silly settlements (IMHO) e.g., “we’ll do more NEPA next time.” My opinion is that lawyers and a couple of others on a conference call is not a good way to make public policy. It seems pretty ironic when a small group decides something when the law is all about the public being involved in decisions.

Sometimes DOJ works with the forest to settle a case, but the route they take makes bad case law for everyone else. This sometimes happen because folks from the Regional Office or the Washington Office who are in that program (say recreation or timber) are not invited to the calls that help decide what happens. Sometimes it’s because they aren’t listening to those voices. Sometimes it’s because of differing views of risk among DOJ, OGC, the forest, and everyone else who has the same program. For example, forest “A” does a mildly questionable job of doing “x”, say 30 pages of analysis. Plaintiff will settle if forest “A” does 100 pages. However, they can settle for doing more work than everyone else does, But since no one in the room (or on the conference call) knows what everyone else does, it is apparently easy to ignore in the rush to settlement. In this example, prior to this case, everyone else was doing 50 and it was fine. So effectively the policy is changed (everyone must now do 100 because of this settlement) without analysis of the impacts (ironically?).

Anyway, that’s just one experience. You might also look at this post on what Chief Jack Ward Thomas said about settlements. I think things probably work the same way now.

9 Comments

  1. Coincidentally, here is a case that illustrates both Laura’s question and Sharon’s concern (in this case the plaintiffs won in district court, but the considerations should be similar): http://missoulian.com/news/local/grizzly-bears-ensured-safe-passage-on-glacier-park-s-western/article_6b60cc46-5b52-5e18-beaf-870f143a7fc1.html

    “The Friends of the Wild Swan, Montana Environmental Information Center and Natural Resources Defense Council in 2013 challenged a recommendation by the U.S. Fish and Wildlife Service to eliminate the bears’ security areas from the state’s Department of Natural Resources and Conservation habitat conservation plan for the area.

    “U.S. District Judge Donald Molloy ruled the Fish and Wildlife Service’s analysis of the state’s plan fell short of what is required in the ESA. He ordered an injunction last year that prevented Montana from carrying out its habitat conservation plan in the two state forests, but allowed the plan to be implemented in other areas. Both the Fish and Wildlife Service and the conservation groups appealed to the 9th U.S. Circuit Court of Appeals, and had been in settlement negotiations since March.”

    (The original HCP protected 36,000 acres, while the settlement protects 22,000 acres.) “This is less acreage than the previous plan, but we got some really important areas for grizzlies that connects Forest Service and state lands for the bears,” said Arlene Montgomery of Friends of the Wild Swan. “It covers a lot of avalanche chutes and riparian areas that are good bear habitat, and also good places for lynx and wolverine.”

    “Gov. Steve Bullock, who presides over the Land Board, said the resulting agreement means “a win-win for the wildlife, the habitat, the timber interests and for the trust which this board oversees.”

    This is a settlement while a circuit court appeal was pending. The parties now had a better idea of the strength of their cases, but the 9th Circuit outcome was uncertain. They were able to find common ground that both saved them some money and avoided possible worse outcomes.

    I usually reply to Sharon that most settlements don’t make policy decisions, they just agree on more process. This is a substantive settlement. From a NEPA (or MEPA) standpoint, I would hope that the settlement alternative is within the range of those considered in the NEPA process, and that there would be a new decision document that would be subject to appeal/litigation. From an ESA standpoint, the analysis is still inadequate, but since nobody else cared enough to litigate this, this “small group” gets to decide that’s ok. I guess I don’t think it’s a bad outcome (and neither does the Governor of Montana, who represents a lot of people).

    I do disagree here with Sharon’s suggestion that settlements establish new agency policy; I was informed pretty explicitly that they do not.

    • Hello Jon and others,

      Arlene Montgomery of Friends of the Wild Swam wrote me and asked:

      I was hoping you could post a clarification of our griz HCP settlement to your forest policy pub blog. There are some misrepresentations on the blog about the HCP (which is likely due to the Missoulian reporting)

      1. The HCP did not protect 36,000 acres of griz core on the Stillwater and Coal Creek state forest– it eliminated it. Prior to the HCP that 36,000 acres had been secure core for griz since the mid 1990s (incidentally this was something DNRC did of their own accord). Through our negotiation we regained 22,000 acres of roadless secure core for griz that will remain in effect for the rest of the HCP lifespan (47 years).

      2. The EIS for the HCP did analyze an alternative (C) that retained that core — in fact it was the preferred environmental alternative. The selected alternative B (that eliminated the core) was found to be deficient by the court because its seasonal restrictions that allowed road building and logging in core were not adequate protection for grizzly bears (like the core was).

      3. The FWS and DNRC appealed the court’s decision to the 9th circuit; plaintiffs cross appealed. The case was placed in mediation at the 9th circuit to see if the issue could be resolved (I believe this is becoming more common since the 9th circuit has a mediation department). FWS dropped their appeal; plaintiffs and DNRC negotiated the settlement.

      4. The only aspect of the HCP that was enjoined on the Stillwater and Coal Creek state forests was regarding grizzly bear core — the rest was not affected. (Again the news reporting was misleading).

      5. There has been no remand from the court for a supplemental EIS — neither FWS nor DNRC have an appeals/objection process (like the Forest Service does). The Land Board (Gov, SOS, AG, SPI and Auditor) approved the settlement yesterday; on state land issues they could be considered the final decision maker.

      6. The Plaintiffs in this case met with the Land Board, DNRC and FWS for over a year to try to work out deficiencies in the HCP prior to the FWS issuing the “take” permit and the HCP being authorized. The griz core issue was an issue that could have been resolved prior to the ROD but since it wasn’t the administrative and legal process allows us to go to court.

      7. This was not a timber sale case; it was a challenge to FWS issuing an incidental take permit to DNRC for their 50 year HCP under Section 10 of the ESA.

      I hope this clears up some of the confusion about this case.

      • It’s always good to hear from someone involved in the story – thanks. Especially because there seems to be a lot of mythology about settlements. It does seem to demonstrate the benefit of a mediation program (which is not the same as the arbitration requirements being promoted by some), even involving those viewed by some as being “radical environmentalists.”

  2. Jon, I don’t know who informed you of that, but maybe the difference is in your definition of “policy”.

    Here’s what Chief Jack Ward Thomas went on record as saying:

    One of the most stunning facts that I have learned over the past year is that, in its ability to independently determine whether or not to proceed with any legal activity, the Department of Justice wields the greatest capacity to set policy of any agency of the government. I naively assumed that the chief of the Forest Service made the decision as to whether to pursue a court action. Not even the undersecretary or the secretary makes those decisions. Such can merely request and suggest. The Department of Justice decides- the agency can proprose and the Department of Justice disposes. That power is not well understood even by students of the internal workings of government. If the policy-setting power of the lawyers in the Department of Justice were well understood, I don’t think anybody- Congress, the persons affected, or politically appointed agency administrators- would appreciate that fact.”

    and

    “In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”

    So I’m with Chief Thomas on this… having seen it happen myself. Here’s the whole post http://forestpolicypub.com/2011/01/17/jack-ward-thomas-on-the-role-of-doj-and-settlements/.

  3. My definition of “policy” is what I think you implied with your example of requirements for additional pages of documentation. Just because that is part of a settlement does not make it a binding precedent on future actions. As I saw it, DOJ’s authority was limited to the case at hand, and referring to that as “policy” is misleading. To the extent someone is suggesting that DOJ has an overarching political strategy to determine agency policy, I think that would be an overstatement. At best, there is an Administration political strategy that is implemented by all agencies with some degree of cooperation.

  4. Here is the definition of “policy” from the American English dictionary:
    “a set of ​ideas or a ​plan for ​action ​followed by a ​business, a ​government, a ​political ​party, or a ​group of ​people”
    now, many NEPA people think that the policy is following the law and regulations. However in some cases, federal lawyers say that the agency should do things based on previous settlements because in a way, the agency admitted that that was a good way to go about their business leaving the agency legally vulnerable if they don’t do it the way they agreed to in the settlement.

    I have heard attorneys argue that we couldn’t just follow law and regulations because of the precedent set by settlements. They may have been wrong, and that would be a good thing to know.

    I don’t think DOJ has an overarching political strategy, nor do I think that the Chief was saying that. I think they have a lot of power, and are not afraid to use it. Their own personal predilections as well as the party in power influences that. The Chief was just questioning this system. (note, he was not just talking about settlement agreements, but also the process of deciding which to settle and which to appeal).

    Interagency disagreements are bad to raise to a higher level and it is always better to go with the flow and not make an issue (sounds like our post on within the Forest Service 😉 ). Chief Thomas did but was bringing pine cones to a gun fight.

    • “the agency admitted that that was a good way to go about their business leaving the agency legally vulnerable if they don’t do it the way they agreed to in the settlement.”

      The agency only admitted that this was a good way to settle a specific lawsuit (settlements may have a clause that states they aren’t admitting any wrongdoing), and settlements have no precedential value in court. It may be correct that if they do the same thing again soon, someone in DOJ will remember, and they won’t defend it.

      I don’t remember even hearing about settlement terms if I wasn’t involved. “Policy” is supposed to go into the Directives, but how often have the results of a settlement ended up there? It rarely even happens for case law. If no one knows about it, policy hasn’t changed. And then there is the longstanding policy of “make them sue us.”

  5. Hey Matt,

    I’m curious as to how much science and analysis went into the Friends of the Wild Swan’s settlement agreement? Surely they consulted with the best bear biologists in the country right? Amazing that they could get that level of analysis done in only a couple months! Good thing the best available science was used in this mediation…or maybe random lines were drawn on maps? Curious…maybe Arlene could describe the analysis methods she used to come up with this 22,000 acres? I would hate for this settlement agreement to be arbitrary and capricious 😉

    -Smokey

    • Hey Smokey,

      Best that you contact Friends of the Wild Swan directly, in case you might actually be interested in knowing the answer, and aren’t just being an anonymous “_______.”

      Please do let us know what you find out. Cheers.

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