What’s The Beef, Part Two: How Lawsuits Shape Land Management Policies

Range management is more a result of lawsuit than science…Special interest groups sue the land management agencies and they agree to settle on terms that do not benefit the general public and are almost never disclosed…

Victor Iverson in Deseret News, January 22, 2016

When protesters occupied the Malheur National Wildlife Refuge in Harney County on January 2nd, 2016, I had no idea where the story would lead me.  I’ve written before about being open to opposing viewpoints and ideas, and questioning one’s own opinions.  This story has certainly had me questioning mine, in many ways.  One of those is my feelings and opinions on the ways we go about preserving and protecting our wild lands and wild life.

I love rivers.  I have spent years paddling on them, hiking beside them, swimming in them, finding peace sitting next to them.  And there are a few that are especially precious to me, right in the middle of my favorite place I’ve been to so far, the Kalmiopsis wilderness in Southwestern Oregon.  These rivers, and this area, are the scene of another land use debate, and I side with saving the rivers, and the land.  Because I love them, they are home, and, well, I am not a nickel miner.  Another one of my favorites is the incredibly remote and beautiful Owyhee River, yet another place that is contested, and again I view that issue from the perspective of one who wants to preserve the river and canyon.  Again, I’m not a miner, or a rancher.

If you love the lands, the wild places of our world, and you are upset over the occupation of the Malheur refuge because you see it as an attack on your right to public lands, I can understand.  If you believe that ranchers are subsidized with low grazing fees and are still demanding more hand-outs from the government by grabbing land, well, then I would ask you to take a step back and consider some things.  Take some time to consider their side of the story.  Because you may realize that the reasons they are angry isn’t all that different from the reasons you are angry.

Sue and Settle

Back in the heyday of clear-cutting, over-grazing, strip-mining, etc, when a generation of passionate environmentalists were inspired by Hayduke and his Monkey Wrench Gang, it seemed that the only way to bring attention to the problems of over-use and degradation of lands was with aggressive, sometimes dangerous, protest actions.  From removing survey stakes and tree spiking to bombings and arson labeled as eco-terrorism, considered one of the greatest threats of terrorism in the United States, environmentalists wanted to be heard.  In desperation to save what they loved, they demanded change in the only ways they felt were left to them.  But then another way was found to effect change in land use policies.

We decided, let’s just sue instead.  It got settled with the Service agreeing to do a wolf study, which led to reintroduction.

That was the moment when we looked at it and said, ‘Wow.’  The environmental movement spent a decade going to meetings and demanding action and getting nothing done.  They were asking powerful people for something from a position of no power.  We realized that we can bypass the officials and sue, and that we can get things done in court.

Kieran Suckling of the Center For Biological Diversity in an interview with High Country News

The use of lawsuits to force the agency overseeing the land or wildlife in question to act has proven to be effective.  And it has been steadily increasing.  When the agency agrees to reach a settlement in these lawsuits, the terms are negotiated behind closed doors, outside of the public’s view, away from the public’s input.  It is referred to as ‘sue and settle.’  Here is a short definition from a report from the US Chamber of Commerce:

“Sue and Settle” refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.  The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties.  These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.

Here is another from the Washington Examiner:

Here’s how the process works: First, the private environmental group sues the EPA in federal court seeking to force it to issue new regulations by a date certain. Then agency and group officials meet behind closed doors to hammer out a deal. Typically in the deal, the government agrees to do whatever the activists want. The last step occurs when the judge issues a consent decree that makes the deal the law of the land. No messy congressional hearings. No public comment period. No opportunity for anybody outside the privileged few to know how government regulatory policy is being shaped until it’s too late.

This means that the very people affected by the policies and actions agreed upon are left out of the decision making process, they are not a part of the equation.  Until it costs them their livelihood, or until they are the local officials in charge of enforcing the policies, often at the expense of their neighbors and even families.  Add to that the issues of water rights, reductions in land use, and devastating wildfires that threaten homes and livestock that are the result of federal mismanagement.  Now can you begin to see where some of the anger comes from?

Beaver County Commissioner Tammy Pearson described struggling ranchers held hostage by the proliferation of wild horses that are ruining a drought-striken range for cattle, wildlife and other uses.

Pearson, a rancher herself, said the situation is dire.

“Producers have exhausted their financial reserves, have lost their faith in federal agencies and have been backed into a corner by those agencies and so-called environmentalists and advocacy groups,” she said. “This grief has caused the uprisings that we see in Nevada, Oregon, and quite possibly in Utah.”

Deseret News, January 22, 2016

It shouldn’t be surprising either that mistrust in the Federal government has only increased alongside these sue and settle, closed door agreements that increasingly shape policies.  It is reminiscent of the mistrust environmentalists felt towards federal agencies and wealthy land owners and corporations in the days of Hayduke.

Another thing to keep in mind is that these lawsuits cost money.  Karen Budd-Falen, an attorney with a long history in land use law who works to protect property rights, and to bring attention to the use of the legal system to effect environmental policy, has been attempting to find out just how much they cost for years. “I was floored to learn that the federal government couldn’t tell me (after multiple Freedom of Information Act requests) how many times they had been sued and how much money they had paid,” said Budd-Falen in this article from The Dalles Chronicle from May of 2014.  The article goes on to quote her claim that environmental groups received settlements of more than $4.7 billion as a result of more than 15,000 suits filed in a six year period in the 2000’s.

According to another article from The Dalles Chronicle published two days later, John Buse, legal director for the Center for Biological Diversity, disputed the claim.  He also disagreed with a figure of $52, 518,628.00 total payouts for 489 cases filed between January 2009 to April 2012 that was revealed in a U.S. Department of Justice report provided to the House Natural Resources Committee.  Buse stated, “although that report appears to cover a little over a three year period, we believe it actually covers more than 20 years.”  He said that the figure included cases from the past that were still open.

Budd-Falen also points out that,

Unlike lawyers who seek redress of grievances on behalf of veterans, senior citizens and the disabled, the fees that an environmental attorney can recoup are not capped, according to Budd-Falen.

“Attorneys suing most agencies can recover $200 per hour in fees if they prevail but environmental lawyers are often awarded $750 per hour or more,” she said…

…“There are lawyers across the nation that make their total living from suing the government.”

That article goes on with this:

Dustin Van Liew, executive director of the Public Lands Council, which is affiliated with the National Cattlemen’s Beef Association, believes the U.S. Forest Service and Bureau of Land Management, the two agencies that oversee public grazing, are also trying to pre-empt lawsuits by using administrative powers to appease environmentalists.

For example, he said the bureau has cut 30-50 percent of livestock grazing in Owhyee County, Idaho, by placing restrictions on permits. He said the agency is making those decisions without a scientific review of any issues that environmentalists raise or attempt to work out a mitigation plan with ranchers, if that is necessary.

“We believe they are not making decisions based on what’s happening on the ground,” he said.

It would make sense, in order to limit the money being paid out in these settlements, for agencies to do just that.  And that only adds to the list of grievances of ranchers and loggers, etc.  It adds to their mistrust of these agencies and their employees, as it appears to be collusion with environmental organizations.

Kieran Suckling of the Center for Biological Diversity, in the interview with High Desert News linked above, has this to say about the use of lawsuits:

They are one tool in a larger campaign, but we use lawsuits to help shift the balance of power from industry and government agencies, toward protecting endangered species. That plays out on many levels. At its simplest, by obtaining an injunction to shut down logging or prevent the filling of a dam, the power shifts to our hands. The Forest Service needs our agreement to get back to work, and we are in the position of being able to powerfully negotiate the terms of releasing the injunction.
New injunctions, new species listings and new bad press take a terrible toll on agency morale. When we stop the same timber sale three or four times running, the timber planners want to tear their hair out. They feel like their careers are being mocked and destroyed — and they are. So they become much more willing to play by our rules and at least get something done. Psychological warfare is a very underappreciated aspect of environmental campaigning.

I would argue that what may have been a useful and sometimes justifiable tool has been corrupted and turned into an industry.  And it prevents communities on the local level, people from all sides of an issue, from coming together to work out solutions that probably won’t make everyone completely happy, but will at least keep people working while preserving lands and wildlife.  As a result, we are seeing more and more aggressive and sometimes violent acts of protest coming from the people who rely on land use.  From bulldozing fences and turning cattle loose to graze without paying grazing fees, to occupying wildlife refuges.

The reality is, as long as the balance of power keeps shifting back and forth between huge, special interest lobby groups and wealthy power players on both sides of this issue, we on the ground with our passionate desires to save what we love, will be forced apart.  We will continue to fight it out by enforcing increasingly over-bearing restrictions, and resorting to increasingly aggressive guerrilla tactics.

“In a lot of ways, the forest service and grazing community have more in common than not.  Anyone whose livelihood comes from the land understands that we have to keep the land healthy to sustain production.”

Laura Pramuk, public affairs officer for the forest service, said in The Dalles Chronicle in May, 2014

 Read What’s the Beef Part One: The Anger Over Federal Land Management here.

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