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Ninth Circuit Decision Stops “sue and settle” Tactic

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Ninth Circuit Decision Stops “sue and settle” Tactic

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.”

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