Interior Department Secretary Ryan Zinke this week issued an order a public lands advocacy group says is intended to bring more transparency and accountability to consent decrees and settlement agreements entered into by the department.
The order is intended to alleviate concerns that the litigation process has been used to undermine procedural safeguards to ensure the public has input into policymaking, particularly when it comes to the practice of “sue and settle.”
Sue and settle has been used for years by environmental groups that don’t like a policy decision by a federal agency, Ethan Lane, executive director of the Public Lands Council and federal lands for the National Cattlemen’s Beef Association, said.
They use it as a springboard to settle with the agency to get an outcome that’s closer to the policy they want, he said.
They’ve learned in the process that “federal agencies will settle rather than roll the dice in court,” he said.
It’s a low-cost way to sue and get the public policy they want, he said, adding that they’re holding federal policy hostage and being compensated for legal fees through the Equal Access to Justice Act, he said.
One group, Advocates for the West, obtains 31 percent of its annual revenue from attorney fee awards, he said.
Advocates for the West has not responded to Capital Press’ requests for comment, but its 2017 annual report verifies Lane’s assertion.
“This is a business model for these people and a very effective one,” he said.
Loopholes exist to allow these groups a consequence-free environment to pester federal agencies with habitual litigation, he said.
“Litigation is the most consequential issue impacting land management in the West,” he said.
Zinke’s order is not a silver bullet to fix the abuse, but it will shed some sunlight on the process and give everybody a chance to see what is unfolding in these different challenges, he said.
These groups claim to be suing on behalf of the public, and the public deserves to know who is using that leverage, he said.
With more transparency, people will be able to see what’s going on — and they might say “no, don’t settle with these people,” stick with the science-based decision, he said.
“In general, if you can make a decision to placate somebody who’s suing you with nobody knowing … it’s easier to make the decision,” he said.
The American Farm Bureau Federation maintains that activists have grown rich by suing the government and reaping billions of taxpayers’ dollars — and all in secret. The action by the Interior Department will open backroom deals to public scrutiny and is long overdue, according to the organization.
“The Department of Interior is shining light on a corner of government most people don’t even know exists,” Ellen Steel, AFBF general counsel, said in a statement.
Basic transparency demands that citizens know what their government is doing, she said.
“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. 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,” she said.
Some agencies have even been known to invite litigation with the purpose of entering a settlement to provide political cover for controversial agency policies, she said.
“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,” she said.
Every decision unfolding on public lands in the West affects cattle and sheep producers, and all are subject to litigation, Lane said.
“Anti-multiple-use groups really target grazing. We cover a large area, and we’re easy to regulate,” he said.
That makes grazing the low-hanging fruit, and that’s why it’s such a big problem for public-lands ranchers — who are subjected to relentless, coordinated litigation designed to force settlements, he said.
Between 2012 and 2017, the Interior Department agreed to enter into more than 460 consent decrees and settlement agreements and agreed to pay more than $4.4 billion, according to the department.