Guardians v. United States Forest Serv.

• Citation: 778 F.Supp.2d 1143,79 Fed.R.Serv.3d 734
• Decision Date: 11 April 2011
• Docket Number: No. CIV 07–1043 JB/ACT.,CIV 07–1043 JB/ACT.
• Parties: WILDEARTH GUARDIANS, Plaintiff,v.UNITED STATES FOREST SERVICE, Defendant,New Mexico Cattle Growers' Association, Coalition of Arizona/New Mexico Counties for Stable Economic Growth, and New Mexico Federal Land Council, Defendant–Intervenors.
• Court: U.S. District Court — District of New Mexico

778 F.Supp.2d 1143

79 Fed.R.Serv.3d 734

WILDEARTH GUARDIANS, Plaintiff,

v.UNITED STATES FOREST SERVICE, Defendant,New Mexico Cattle Growers' Association, Coalition of Arizona/New Mexico Counties for Stable Economic Growth, and New Mexico Federal Land Council, Defendant–Intervenors.

No. CIV 07–1043 JB/ACT.

United States District Court, D. New Mexico.

April 11, 2011.

James Tutchton, WildEarth Guardians Denver, CO, for Plaintiff.Andrew A. Smith, Trial Attorney, Natural Resources Section, Environment and Natural Resources Division, United States Department of Justice, Albuquerque, NM, for Defendant.Karen Budd–Falen, Kathryn Brack Morrow, Brandon L. Jensen, Budd–Falen Law Offices, LLC, Cheyenne, WY, for Defendant–Intervenors.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Plaintiff's and Federal Defendant's Joint Motion for Indicative Ruling, filed December 3, 2010 (Doc. 79)(“Joint Motion”). The Court held a hearing on February 1, 2011. The primary issue is whether the Court should issue a ruling indicating whether it would approve the Proposed Settlement Agreement between WildEarth Guardians and the United States Forest Service (“USFS”) if the case were remanded. Because the Court declines to recognize a special right on behalf of an intervenor to veto a settlement agreement in multi-party litigation and because the settlement is consistent with federal law, the Court concludes that it would approve the Proposed Settlement Agreement upon remand.

FACTUAL AND PROCEDURAL BACKGROUND

On January 12, 2009, WildEarth Guardians filed a petition in this Court alleging that the USFS unreasonably approved livestock grazing on twenty-six allotments on the Gila National Forest pursuant to Section 339 of the Consolidated Appropriations Act of 2005, P.L. No. 108–447 § 339, which requires that such grazing approvals meeting certain criteria be categorically excluded from documentation in an environmental assessment or environmental impact statement under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 to 4370. The New Mexico Cattle Growers Association, the New Mexico Federal Lands Council, and the Coalition of Arizona/New Mexico Counties for Stable Economic Growth (“NMCGA”) filed a motion to intervene in the litigation in order to represent the interests of the ranchers (“permittees”) holding livestock grazing permits for the challenged allotments. See Motion to Intervene on Behalf of the New Mexico Cattle Growers Association, the New Mexico Federal Lands Council, and the Coalition of Arizona/New Mexico Counties for Stable Economic Growth at 2, filed February 28, 2008 (Doc. 17). The Court granted the motion, and the NMCGA became a defendant in the underlying litigation. See Memorandum Opinion and Order at 9, 2008 WL 5975041, at *5, filed August 29, 2008 (Doc. 44). The Court held that: (i) the USFS reasonably approved continued livestock grazing on the twenty-six challenged allotments without conducting new NEPA analyses; and (ii) the Administrative Record supported the USFS' allowance of continued livestock grazing on one or more of the twenty-six challenged allotments. See Memorandum Order and Opinion at 1–2, filed September 30, 2009 (Doc. 72). On September 30, 2009, the Court entered a final judgment in favor of the USFS on all claims. See Final Judgment at 1, filed September 30, 2010 (Doc. 73).

WildEarth Guardians filed a timely notice of appeal from the judgment on November 20, 2009. See Notice of Appeal from Final Judgment at 1, filed November 20, 2009 (Doc. 74). WildEarth Guardians and the USFS conducted mediation with the Circuit Mediator for the United States Court of Appeals for the Tenth Circuit while the case was pending appeal, and WildEarth Guardians and the USFS reached an agreement to settle the case. See Joint Motion ¶ 3, at 2.

On December 3, 2010, WildEarth Guardians and the USFS filed a joint motion for indicative ruling pursuant to rule 12.1 of the Federal Rules of Appellate Procedure and rule 62.1 of the Federal Rules of Civil Procedure. See Joint Motion at 1. Rule 62.1 provides:

If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: ... state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.

Fed.R.Civ.P. 62.1. Rule 12.1 provides: “If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal.” Fed. R.App. P. 12.1. WildEarth Guardians and the USFS request that the Court issue an indicative ruling stating that it would enter an order approving the Proposed Settlement Agreement if the case were remanded. See Joint Motion at 1. WildEarth Guardians and the USFS also request that the Court retain jurisdiction to oversee compliance with the terms of the Proposed Settlement Agreement and resolve any motions to modify the terms until the USFS satisfies its obligations under the Proposed Settlement Agreement. See Settlement Agreement ¶ 1, at 1, filed December 3, 2010 (Doc. 79–1)(“Proposed Settlement Agreement”).

Under the Proposed Settlement Agreement, the USFS will be required to prepare and complete new NEPA analyses in the form of environmental assessments or environmental impact statements for five of the twenty-six challenged allotments. See Proposed Settlement Agreement ¶ 2(B), at 2. The USFS will also place two other allotments on the 2014–2016 Recessions Act schedule for completion of new NEPA analyses. See Proposed Settlement Agreement ¶ 2(C), at 2. The USFS will continue to authorize livestock grazing on all twenty-six challenged allotments under the existing NEPA scheme, including the seven allotments due for new NEPA analyses, during the pendency of the assessments and any subsequent administrative appeals. See Proposed Settlement Agreement ¶ ¶ 2(A), 2(I), at 2, 4. The USFS will also pay WildEarth Guardians $27,500.00 in attorneys' fees and costs. See Proposed Settlement Agreement ¶ 3(A), at 4.

On January 4, 2011, the NMCGA filed its Response in Opposition to Joint Motion for Indicative Ruling. See Doc. 84 (“NMCGA's Response”). The NMCGA requests that the Court deny the joint motion for indicative ruling and indicate its disapproval of the Proposed Settlement Agreement. See NMCGA's Response at 21. The NMCGA contends that the settlement was improper because the affected permittees were not given an opportunity to participate in the mediation and were not notified of the Proposed Settlement Agreement until the USFS and WildEarth Guardians filed the Joint Motion with the Court on December 3, 2010. See NMCGA's Response at 4–5. The NMCGA argues that the Proposed Settlement Agreement is prejudicial to the permittees' interests. See NMCGA's Response at 7. The NMCGA further contends that the Proposed Settlement Agreement contains provisions that award attorneys' fees to WildEarth Guardians and that such provisions violate the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)(“EAJA”).

On January 21, 2011, the USFS filed its Reply in Support of December 3, 2010 “Joint Motion for Indicative Ruling,” Dkt. No. 79. See Doc. 88 (“USFS' Reply”). The USFS requests that the Court enter an order indicating that it would approve the Proposed Settlement Agreement if the Tenth Circuit were to remand the matter. See USFS' Reply at 12. The USFS contends that it was not required to submit the Proposed Settlement Agreement to the permittees or to the NMCGA for approval. See USFS' Reply at 3. The USFS further contends that the Proposed Settlement Agreement does not harm the NMCGA or the permittees, because it eliminates the risk that grazing will be enjoined or new NEPA analyses will be conducted on all twenty-six allotments if the USFS and the NMCGA suffer an unfavorable ruling on appeal. See USFS' Reply at 4–6. The USFS also asserts that the Court is not awarding fees in violation of the EAJA, and that the United States of America has the authority to settle attorneys's fees and merits together, because 28 U.S.C § 2414 authorizes the Attorney General of the United States Department of Justice to settle cases. See USFS' Reply at 10; Transcript of Hearing at 59:3–5 (taken February 1, 2010)(Smith)(“Tr.”).¹

On January 19, 2011, WildEarth Guardians filed its Reply in Support of Joint Motion for an Indicative Ruling. See Doc. 87 (“WildEarth's Reply”). WildEarth Guardians requests that the Court grant its Joint Motion for a ruling indicating that it would approve the Proposed Settlement Agreement upon remand. See WildEarth's Reply at 7. WildEarth Guardians contends that the NMCGA had ample time to review the Proposed Settlement Agreement before the Joint Motion was filed. See WildEarth's Reply at 3. WildEarth Guardians further contends that ethical rules prohibited it from contacting individual permittees during settlement negotiations except through counsel. See WildEarth's Reply at 4. WildEarth Guardians argues that the settlement was not adverse to the permitees' interest, because it eliminated the uncertainty that the appeal presented. See WildEarth's Reply at 3. WildEarth Guardians contends that the test for determining whether a court may award attorneys's fees under the EAJA does not apply to settlement agreements. See WildEarth's Reply at 6.

The Court held a hearing on February 1, 2011. At the hearing, the NMCGA argued that, as an intervenor, it deserved a seat at the negotiating table at all times during the settlement process. See Tr. at 28:14–16 (Morrow). The NMCGA conceded that the USFS could have legally agreed to conduct new NEPA analyses on some of the allotments to avoid the lawsuit, but contended that the USFS' decision to conduct new NEPA analyses earlier than scheduled was...