Putting an end to the practice of “secret settlements” when environmental and other activist groups sue the federal government appears to be the intent of an order issued by Secretary of Interior Ryan Zinke’s office on Sept. 11.
Secretarial Order 3368 was applauded by the Public Lands Council (PLC), National Cattlemen’s Beef Association (NCBA), and the American Farm Bureau Federation (AFBF) as a solution to the “sue and settle” practice that has helped to line the pockets of activist groups for years.
Even if settlements continue to be paid, the order will create more transparency and put an end to what some view as backroom deals.
In response to the order, Ethan Lane, executive director to the Public Lands Council and National Cattlemen’s Beef Association Federal Lands, said, “Ranchers operating on public land are subjected to relentless, coordinated litigation designed to force settlements with the Department of the Interior (DOI). These actions waste taxpayer dollars, divert precious resources away from conservation efforts, and jeopardize the livelihoods of America’s food and fiber producers.” He added, “Secretary Zinke should be commended for this common-sense decision, which will shed some light on these bad actors and their unsavory tactics.”
AFBF General Counsel Ellen Steen commented. “The Department of Interior is shining light on a corner of government most people don’t even know exists. When activists sue, they can tie up the government with dozens of frivolous claims but still recover attorneys’ fees if a judge upholds even one, solitary claim.”
But many cases don’t even make it to a courtroom, as Lane explained, there are cases that go through a public policy process with public comments. But, separate from that, there are situations where, for example, a radical group sues and forces a private conversation with an agency like the U.S. Fish and Wildlife Service (USFWS). Lane said often those conversations are behind closed doors and out of the view of the public, ending in a “middle of the road” agreement that gets the group to withdraw the lawsuit.
Lane emphasized those actions are not part of the public process and commenters and taxpayers are unaware that their opinions are being pushed to the background in favor of the “litigious groups.” He said he believes DOI’s intent is to draw light to the fact that the activist groups are putting extreme pressure on agencies time and time again and the public should be aware of it.
Although the payments are definitely part of the conversation, Lane said the policy ramifications are especially concerning. “It’s the idea that we’re all in good faith participating in a public process and the Center for Biological Diversity or Western Watersheds just lobs a lawsuit grenade into the middle of it and they get their way because they didn’t work and play well with others.”
Lane continued, “It’s that policy decision making that is really concerning to us; that [agencies] may have a stack of scientific data and public opinion and information on the ground that says that taking a particular action is the most responsible course, but then they chose not to because of fear of that litigation or because of a settlement that ties their hands. That’s all those environmental groups need to declare victory.”
In providing background, the order explains that between Jan. 1, 2012 and Jan. 19, 2017, the DOI agreed to enter over 460 settlement agreements and consent decrees, paying more than $4.4 billion in monetary awards.
DOI explained that in many cases entering a consent decree or settlement may be prudent in order to avoid costly and drawn out litigation that the agency is likely to lose. It noted, however, “Concerns have been raised with respect to various federal agencies that the litigation process has been used to undermine the procedural safeguards Congress put in place to ensure that the public has input in policymaking, particularly through a practice referred to as ‘sue and settle.’”
The intent of the order, DOI said, is to alleviate those concerns by giving the public notice of litigation, settlement agreements, and consent decrees involving the department. “In addition, it provides a process for public input before the department recommends approving a settlement with certain long-term implications or large budgetary commitments.”
Steen also commented, “Faced with a barrage of allegations that sap agency time and resources whether they have merit or not, the government is too often motivated to capitulate through secret settlements. Some agencies have even been known to invite litigation with the purpose of entering a settlement to provide political cover for controversial agency policies. And in settling, agencies often agree to pay legal fees, which further fuels the sue-and-settle machine. This action is a solid first step to fixing the problem. Every other federal agency should follow suit.”
Lane said the hope is that the comments could serve to indicate to the USFWS, the DOI secretary, or other government agencies that a proposed settlement is really objectional to the general public. Additionally, he said, “Those comments like in any public comment period could point out some concerns that [the agencies] had not thought about previously, or some ramifications of a settlement that they hadn’t thought about previously. It opens the dialogue up to all of the people that should be included.”
Among the provisions of the order to make decisions more transparent is that proposed decisions be published in the Federal Register with public comment period of at least 30 days. Additional action items require DOI to:
• Establish a publicly accessible webpage that details ongoing litigation.
• Post a searchable list and text of final judicial and administrative consent decrees and settlement agreements that govern departmental actions, along with details of attorneys’ fees paid.
• Post any proposed consent decree or settlement agreement that commits DOI to seek a particular appropriation or budget authorization from Congress or formally reprogram appropriated funds.
Lane concluded, “The best way to describe this thing is, they have taken steps to turn the cameras on so the next time the enviros want to hijack a policy process they are going to have to do it in full view of the American public. That’s the intent of what they are doing here.” — Rae Price, WLJ editor
[inline_image file=”39ae207a4c5531f989b6470835d234fe.jpg” caption=”Text of Secretarial Order 3368 addressing “sue and settle.””]
