Litigation

9th Circuit Appeal Decision Allows More Intervenors

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See “Court Ruling Opens Door for Intervenors in Western NEPA Disputes” in NY Times here.

Previously “Under the San Francisco-based 9th U.S. Circuit Court of Appeals’ “federal defendant rule,” anyone other than the federal government was barred in most instances from defending claims under the National Environmental Policy Act (NEPA), the main legal mechanism for challenging government actions that affect the environment. ”

The rule, unique to the 9th Circuit, was frustrating for business and recreational interests in particular, which thought their voices were not always being heard in cases between environmental groups and the government.

Environmental groups had largely stayed neutral on the question of whether the rule should be kept and have downplayed the importance of the case. That is because, while the rule might help them in some cases, in others, it does not.

The ruling will have considerable consequences in the environmental context because the 9th Circuit’s jurisdiction includes the nine Western states, and its caseload therefore includes a substantial number of environmental cases in which the federal government is the defendant.

The rationale behind the rule was that parties seeking to intervene did not have a “significantly protectable” interest because NEPA is a law that only binds the federal government.

Writing for a unanimous court, Judge Barry Silverman said the rule “ignores our traditionally liberal policy in favor of intervention” and “fails to recognize” the fact that private parties can show a protectable right,” he added.

The dispute that led to the ruling focused on efforts by the Magic Valley Trail Machine Association to intervene when the Wilderness Society and Prairie Falcon Audubon Inc. sought to challenge a Forest Service decision concerning motorized travel in the Sawtooth National Forest in Idaho.

It seems mildly odd to me an idea unique to one circuit and one that seems ultimately to be questionable, lived as long as it did (since 1989?). I wonder if there should be time limits on courts responding to appeals, as there are for agency administrative appeals? Here is a link to the decision. I seem to remember a legal maxim along the lines of “justice delayed is justice denied.”

Beaverhead Deerlodge- Another “Who’s At the Table?”

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Here’s a link to a newer lawsuit on the Beaverhead Deerlodge plan.

County Commissioner Mike McGinley said the Forest Service’s plan included wilderness areas that were never before considered and don’t meet the criteria for the highest level of land protection under federal law. And he said the plan, which guides management of the 3.3-million acre forest, was crafted after closed-door meetings between then Beaverhead Forest Supervisor Bruce Ramsey and the partnership members.

It seems like once again the issue is who was at the table. Is this an argument for formal advisory committees which include governments? Where should cooperating agencies and others fit? I hope that folks in Montana will share their insights.

Who’s at the Table and Who Decides?

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Observing the stories in the press on our favorite topics over the past two weeks, I found a common set of questions that I hope can illuminate the controversies. ”Who’s at the Table and Who Decides?” There is another thread, in some of these stories, of the appropriate role of state and local governments.

In this post, we’ll examine the settlement of case against four forest plans (82 Rule) in southern California.

Here’s the link to the below quote. http://lakeconews.com/content/view/17531/931/
Here’s the link to another piece on the settlement on this blog.

SAN FRANCISCO – Attorney General Edmund G. Brown Jr. has announced a settlement that requires the U.S. Forest Service to reconsider its plans regarding wilderness lands in four national forests, including the Los Padres, home of the endangered California condor. “With this settlement, the state of California will now play an active role along with the Forest Service in determining which areas of Southern California forests will be preserved as wilderness,” Brown said. The settlement resolves a lawsuit brought by Brown and various state agencies and environmental groups against the U.S. Forest Service for its plans to allow roads to be built through hundreds of thousands of acres of wild lands in the Los Padres, Angeles, Cleveland and San Bernardino national forests.

Who’s at the table? The plaintiffs (listed in the agreement) and the Forest Service and DOJ.
Who decides? The Department of Justice and the Forest Service and the plaintiffs, which in this case includes the State of California.

It appears to me that the State and groups that used the tactic of litigation moved the decisions in forest plans from being an open process, where the FS decides, to a not- open process where it is not so clear who decides. If land management allocations are ultimately to be made in the courts, because plans are so complex that it is difficult to do one perfectly- especially when people are paid to find flaws- perhaps it tells us that more conflict resolution, and not more analysis is what is needed. Again, I think it’s OK to use that as a tactic, but using that as a tactic has potential negative ramifications, from the perspective of openness and transparency, that need to be acknowledged.

It looks like the settlement imposes roadless-rule like requirements or, in other words, establishes a policy for federal lands in part of the State. We have had the discussion before on this blog about whether settlement agreements actually set policy. This seems to be an example of that.

Southern California Settlement Agreement

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John Gastaldo

Here’s a story on the settlement to the four California forest plan litigation.
It sounds interesting:

Under the agreement, federal and state agencies, conservationists and off-roaders will work together to improve roadless areas. The Forest Service will reconsider protecting several of the areas permanently as wilderness.
In addition, parties will identify roads and trails that are degrading designated roadless areas, and the Forest Service will prioritize them for decommissioning and restoration. The agency also will protect all roadless areas from harmful activities, including those that could prevent them from being recommended as wilderness.
The compromise includes $250,000 to cover attorney’s fees and other costs incurred by environmentalists, who praised the deal as a step toward protecting natural resources on federal property.
“As the Southern California population pushes past 15 million, wild lands are even more critical to the region because they provide drinking water, clean air and outdoor recreation,” said Annette Kondo, spokeswoman for The Wilderness Society’s California office.
The Blue Ribbon Coalition and the California Association of 4-Wheel Drive Clubs were among the user groups who signed the deal. They could not be reached immediately on Thursday.

What strikes me about the agreement is how much it’s about roadless. I have to wonder if this agreement might have been reached without litigation.
Here’s the settlement agreement.

Stay Tuned: Conflict Resolution/Litigation Topic

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Thank you to Martin, Ray, Matthew and Andy for your thoughtful posts on the use of litigation as a conflict resolution tool. What I would like to do next is to carefully read Martin’s essay, synthesize everyone’s points and reflect them back to you to make sure I understand them.

Unfortunately, this is the time of the year that my other volunteer activities reach a crescendo (so to speak) so it may be over the holiday break that this happens.

Nevertheless, I think this is a rich and robust topic for discussion. Our greatest number of hits for this blog occurs when we discuss this, so it seems like our readership feels the same way. I am looking forward to further engagement and enlightenment.

So stay tuned.

P.S.
If anyone knows where I could get a searchable electronic version of Jack Ward Thomas’s “The Journals of a Forest Service Chief”, it would be helpful- he has some great quotes on this topic which I would prefer not to have to search for and type in manually.

Hammers, Carrots, and Olive Branches

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The Ninth Circuit En Banc

This post is in response to Sharon’s recent writing about the role of litigation in federal lands management. 

Though I sometimes disagree with Sharon’s framing of issues and assessment of things, I appreciate her willingness to tackle tough issues.  But if we are going to take on such important questions, I’d like to help define the so-called “litigation problem.”  A few years ago I tried to organize my thoughts about the topic.  Here is the result, a rather long-winded and excessive essay/commentary (Nie_regulatory_enforcement in PDF)

 Here is the abstract:

This article analyzes the role of prescriptive regulation and citizen-suit litigation (regulatory enforcement) in natural resource conservation in the U.S.A.  It first briefly explains why the judiciary is so involved in resource management and why litigation is so often used as a conservation tool.  It then summarizes the extent to which regulatory enforcement is being threatened and/or undermined by Congress, the executive branch, and other interests.  The analysis shows how regulatory enforcement often facilitates the use of less adversarial conservation strategies and that there are important synergies between them.  Regulatory interactions with collaborative conservation, land and resource acquisitions/easements, and adaptive ecosystem management are analyzed. 

 

That is more boring than I remember, so here are a few comments made in the essay that might be of relevance to our readers:

Regulatory enforcement often facilitates the use of other, less adversarial, conservation strategies and shows that there are important synergies between them.  In many cases, a sort of “co-evolution” is apparent, with regulation and litigation playing an important role in the development and leveraging of other strategies. 

The most important lesson is that conservation tools are interconnected in significant ways, and when regulatory enforcement is weakened, so too are a host of less adversarial approaches to environmental protection.  Any political juxtaposition of regulatory and “non-regulatory” policy approaches should be viewed most skeptically.        

While the use of litigation by conservationists has been widely criticized and publicized, we should also recognize its widespread use by other interests.  Industry, commodity, and user-groups have initiated litigation over the 2001 roadless rule, snowmobiles in Yellowstone National Park, forest planning regulations, motorized access to multiple use lands, and dozens of other high-profile cases.  For further evidence, consider the wise use movement’s legal arm, the Mountain States Legal Foundation (www.mountainstateslegal.org ), which publicizes a “litigation of the month” section on its webpage.  The private property rights-based takings movement provides another example, as this political agenda has been purposefully advanced via constitutional litigation. 

The “policy story” of environmental obstructionism is being told by numerous actors, with the remedy being as simple as the narrative: to either remove, weaken, and/or undermine environmental regulations.

And a few comments regarding the role of litigation vis-a-vis more collaborative approaches: 

The following analysis shows that while some exaggerate its virtues, the more serious studies of collaboration show why it is better to view it as supplementary to regulatory enforcement, and is not an adequate replacement.  I take it a step further and argue that the weakening of regulatory enforcement will potentially undermine the usefulness and spread of collaboration in the future. 

For all of the benefits collaboration can produce, it is imperative we view the tool in its appropriate context.  In many respects, the hammer of environmental laws, and the groups willing to enforce them, have created the conditions necessary for collaboration to emerge as a viable governing strategy.  Citizen suits can trigger negotiations that wouldn’t otherwise get started.  And would an interest be at the table if not for some particular regulation leveling the playing field? 

The Articles goes on to explore the role of litigation in leveraging other strategies like land acquisition and adaptive ecosystem management. 

And so I’ll end with this idea, as articulated by Judge Skelly Wright in the NEPA-empowering Calvert Cliffs decision, the judicial role is to ensure that the promise of legislation becomes reality:

Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.

“Grassroots” Environmental Groups and the Role of the Public

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I’d like to start a discussion based on some ideas in Doug Bevington’s 2009 book, “The Rebirth of Environmentalism: Grassroots Activism from the Spotted Owl to the Polar Bear.” If others don’t think his statements are an accurate depiction of how things currently are, nor of history, I think that would also be of interest.

In this book, Bevington contrasts national environmental organizations and their “insider” strategies with what Bevington calls “grassroots biodiversity groups” and their “outsider” strategies. Let me quote from the book p 36.

“As grassroots activists started doing litigation to protect forests and endangered species, they created new organizations as vehicles for the lawsuits. The new groups were initially very small with few members other than the activists directly involved in the group’s work. The activists described their new organizations as “grassroots” to distinguish themselves from the nationals. In the context of other social movements, the term is often associated with mass participation, but this was not the case for most grassroots biodiversity groups. They found that a small handful of determined activists could achieve significant environmental protection through litigation without having to engage in a broad mobilization of the public.”

And why did they not need public support? Because they were funded by foundations.
“The influx of new environmental grantmakers brought in increased opportunities for funding alternative approaches within the environmental movement (p. 37)…” and ” in my interviews with grassroots biodiversity activists a few of the newer environmental grantmakers were frequently mentioned as providing crucial early support for their groups.”

Note: the actual definition of grass roots from Merriam Webster is 1: the very foundation or source
2: the basic level of society or of an organization especially as viewed in relation to higher or more centralized positions of power.

In that sense,  the use of the term “grass roots” by Bevington  is comparing them to national environmental groups and not necessarily to local environmental or other groups. It would probably be better to use another term for these groups, but it is convenient to use this term to discuss his book.

The most direct interpretation of their strategy appears to be that public support can be bypassed if funding is available to pursue one’s goals through litigation. And it might appear to local people impacted by these lawsuits that non-local philanthropists and activists may ultimately determine policies through closed-door settlements of litigation. Which may be part of what is behind the desire to limit “appeals and litigation”- to favor open processes where local people and governments can weigh in on policies that directly affect them.

When seen through the lens of social justice, it appears that choosing litigation as a strategy may favor national interests, and those wealthy enough to be philanthropists, at the expense of the local interests and the working class. At least this lens needs to be carefully considered, in my opinion.

One way to increase trust with local people and governments would be to make transparent the source of funding for these groups, and specifically, from whom each grant is received. Then those who disagree with the legal proceedings of a group could deal directly with the granting foundation. Another way would be to open all settlement discussions to the public. It seems that if transparency is thought to be a good thing for government, it should be equally a good thing for other ways of developing public policy.