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Interior department looks to stop ‘sue and settle’

Sec. Zinke looks to shine a light on the misuse of taxpayer funds by revealing any deals made with activists groups.

The U.S. Department of Interior has issued an order to curb the increased use of the “sue and settle” technique used by activist groups. Many have said activist groups have grown rich by suing the government and reaping billions of taxpayers’ dollars – all in secret.

Interior alone paid out more than $4.4 billion in monetary awards under terms of 460 settlement agreements and consent decrees between Jan. 1, 2012, and Jan. 19, 2017. In the final year of the Obama administration the department entered into 96 settlement agreements or consent decrees, agreeing to pay more than $1.7 billion in monetary awards. Interior paid out an average of more than $800 million a year while keeping key aspects of litigation secret.

The order from Interior Secretary Ryan Zinke said in many cases, entering a consent decree or settlement agreement may be a prudent use of taxpayer resources to avoid costly and drawn out litigation that the Department is likely to lose. 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 a “sue and settle.”

It’s easy to see why so many outside observers fear an unaccountable bureaucracy cutting deals with activists, the American Farm Bureau Federation said.

“The Department of Interior is shining light on a corner of government most people don’t even know exists,” AFBF General Counsel Ellen Steen said. “Basic transparency demands that citizens know what their government is doing. 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.”

Steen added, “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.”

Among other things, the interior department has committed 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.
  • Publish notice of proposed consent decrees and settlements in the Federal Register, and provide a public comment period of at least 30 days.

Ethan Lane, executive director of the Public Lands Council and National Cattlemen’s Beef Assn. Federal Lands, welcomed the proposed changes from the interior department.

“Ranchers operating on public land are subjected to relentless, coordinated litigation designed to force settlements with the Department of the Interior. These actions waste taxpayer dollars, divert precious resources away from conservation efforts, and jeopardize the livelihoods of America’s food and fiber producers. Secretary Zinke should be commended for this common-sense decision, which will shed some light on these bad actors and their unsavory tactics,” Lane said.

Darcy Helmick, land manager for Simplot Land & Livestock, stressed to Congress in subcommittee testimony in May 2017, that the federal grazing system and western land use in general, “offensive litigation tactics by outside activist groups have served to totally derail business operations,” said Helmick.

Unreasonable timelines have become the norm, once imposed during settlements, they are rarely reached. “The repercussions of the missed timelines heavily impact the permitted public lands users and result in a level of uncertainty that is prohibitive in any business environment. Unfortunately this is often the goal of these litigants,” said Helmick.

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