By Andy Rieber
WLJ Correspondent andyrieber.com
A recent settlement agreement between federal land
management agencies and environmental litigators over how to protect a slew of
species in northwestern forests was struck down by the 9th Circuit Court, which
ruled that the settlement violated federal laws requiring public participation
for major rule changes.
The court's ruling has received plaudits from the logging
and ranching industries, which have strongly criticized environmental
litigators' practice of cutting deals with federal agencies by suing the
agencies and then modifying agency rules in closed-door settlement agreements-a
tactic commonly known as "sue and settle."
"That was a sweetheart deal between the environmental
organization and the agency," said Ann Forest Burns, vice president of the
American Forest Resource Council (AFRC). "We're hoping that this is a wake-up
call, and will stiffen the spine of the agencies to make sure that the public
processes are followed."
In the case in question, 11 environmental groups, including
Conservation Northwest, Oregon Wild, and the Center for Biological Diversity
(CBD), sued the U.S. Forest Service, Bureau of Land Management, and U.S Fish
and Wildlife Service (USFWS) over a 2007 joint agency decision to eliminate
"survey and manage" standards from the Northwest Forest Plan, which governs the
management of over 24.5 million acres of forest stretching from San Francisco
to the Canadian border. The standards outline management for nearly 400
lesser-known species-such as lichens, fungi, slugs and arthropods-defined as
"ecologically crucial."
Long criticized by the timber industry for hamstringing the
approval of timber contracts, survey and manage standards require the agencies
to conduct extensive research on the species and protect them from logging. "It
was essentially a poison pill that was put in at the end of the Northwest
Forest Plan," Burns said. Burns added that the survey and manage standards
"keep the Northwest Forest Plan from functioning appropriately," since they
prevent logging from occurring at the levels originally envisioned by the
plan's authors.
In 2011, a federal district court ruled against the
agencies, determining that their decision to scrap the survey and manage
standards, which the agencies claimed were excessively costly and onerous, had
violated the National Environmental Policy Act (NEPA). The agencies and the
environmental groups then privately revised the survey and manage standards,
which were subsequently approved by the district court in a consent decree.
D.R. Johnson Lumber Co., interveners in the case, appealed
the decision, claiming that the settlement had shut them and other stakeholders
out of the rule-making process.
In its April 25 ruling, the 9th Circuit agreed, stating that
the district court had committed an "abuse of discretion;" since the settlement
had created new survey and management standards-essentially amending the
Northwest Forest Plan-it had side-stepped statutory public input requirements
for new rule making.
"Because the consent decree in this case allowed the
Agencies effectively to promulgate a substantial and permanent amendment to
Survey and Manage without having followed statutorily required procedures, it
was improper," the court wrote in its opinion.
NEPA, the National Forest Management Act, and the Federal
Lands Policy and Management Act all require agencies to solicit public input
before making major changes to land use plans.
Although the timber industry is chalking up the decision as
a major victory, environmental advocates are not ready to concede that the
ruling constitutes a serious blow. According to Susan Jane Brown, staff
attorney with the Western
Environmental Law
Center, the timber
industry has also engaged in sue and settle tactics, making the ruling equally
relevant to industry litigation.
Brown called the timber industry claims that the ruling will
rein in environmentalists' sue and settle tactics "extremely disingenuous,"
adding that industry litigators, specifically on the Western Oregon Plan
Revisions for O&C lands in southern Oregon,
engaged in the same sue and settle maneuver during the Bush administration.
"I would be very careful about throwing stones at glass
houses if I was the timber industry on that issue," said Brown. "This outcome
has reinforced the fact that we're [all] going to have to be very diligent when
coming to a settlement agreement that may result in changes in land management.
That cuts both ways, whether you're an environmental litigant or a timber
litigant."
Brown also suggested that the 9th Circuit's decision to toss
out the settlement and revert back to a 2001 version of the Northwest Forest
Plan while proper public input procedures are observed actually hurt the timber
industry's interests. By contrast, Brown maintained that the settlement
agreement-lack of public input notwithstanding-was much friendlier to timber
interests than the 2001 rule.
"What had been negotiated as a result of the settlement
agreement that had been overturned [.] allowed additional logging to go forward
without surveys," claimed Brown. "What the timber industry has done is
reinstate all of the requirements to survey and buffer [.] which means there
will be more surveys, less logging, more buffers, more money spent, more time
spent than under what we were trying to do with this settlement agreement."
Brown concluded that the timber industry's legal approach
"doesn't make a lot of sense," given that the net result is that "there will
probably be less logging."
Though it remains to be seen exactly how this recent ruling
will affect litigation strategies against federal agencies, timber and grazing
interests are optimistic that the decision will make it harder for
environmental groups to cut deals like the now notorious 2011 settlement
between CBD and USFWS, which required USFWS to fast-track endangered listing
decisions on 757 species, including the greater sage grouse and Mexican grey
wolf. It is also unclear whether previous settlements that involved substantive
rulemaking changes could be challenged anew given the 9th Circuit's opinion.
At very least, Burns of AFRC is optimistic that future
settlements will leave room for the public to weigh in. "We hope that since the
Circuit has decided it, this it's going to apply throughout the 9th Circuit and
that we will stop having quite so many instances where the environmental
organizations, sue, [then] settle without any input through the public
process."