In a recently issued press release, the Center for Biological Diversity (CBD) announced that it and the U.S. Fish and Wildlife Service had entered into two settlement agreements that would increase protection for the Mexican gray wolf (Canis lupus baileyi) in Arizona and New Mexico. The press release states that under the two agreements the Fish and Wildlife Service will increase the wolf's recovery territory, stop capturing wolves entering the two states from Mexico, and finalize a rule to allow direct release of Mexican gray wolves into New Mexico. Under one of the agreements, CBD expressly reserved the right to recover "litigation costs including attorneys' fees." This may raise some red flags for certain individuals, as the recovery of attorneys' fees under the citizen suit provisions of the Endangered Species Act has been a controversial issue of late, particularly when entities like CBD are involved. See our June 4, 2013, March 29, 2013, and February 28, 2013 posts for a discussion of the issue.
Yesterday, a Republican Senator from Texas, John Cornyn, introduced a bill (pdf) that would prohibit the U.S. Fish and Wildlife Service from settling environmental lawsuits without first publishing the complaint "in a readily accessible manner, including electronically," and allowing "affected parties" an opportunity to intervene. The bill further provides that the filing of any motion to dismiss or for entry of a consent decree based on a settlement agreement shall be prohibited until after affected parties have had a "reasonable opportunity" to intervene. Should a party intervene, the bill would compel the courts to refer the parties, including all that intervened, to either a mediation program of the court or a magistrate judge. The bill would also prohibit any award of litigation costs for certain "covered settlements," and prohibit the courts from approving a "covered settlement" until the settlement is approved by each state and county in which the Secretary of the Interior believes a species occurs.
On December 17, 2012, the National Association of Home Builders, the Olympia Master Builders, the Home Builder Association of Greater Austin, and the Texas Salamander Coalition, Inc., filed a lawsuit (pdf) against the U.S. Fish and Wildlife Service and Ken Salazar, in his official capacity, alleging that when the Service entered into stipulated settlements with WildEarth Guardians (pdf) and the Center for Biological Diversity (pdf) establishing procedures and deadlines for reviewing the listing and critical habitat determinations for 251 candidate species, it violated the Endangered Species Act and Administrative Procedure Act. A short discussion of the history leading up to these settlements can be found here. Plaintiffs allege in the complaint that "[t]he Service has abdicated a mandatory process based on best available science, public input and independent peer review in favor of a private settlement that lets two advocacy groups dictate the order, and pace of its statutorily required decision making process." As one example, plaintiffs allege that the agreements prohibit the Service from making a "warranted but precluded finding or to continue to assess information and conservation efforts that would lead to a warranted but precluded finding." While both settlement agreements do set forth procedures and deadlines for the Service's review, the agreements also state that "[t]he Agreement shall not (and shall not be construed to) limit or modify the discretion accorded to Defendants by the ESA, the Administrative Procedure Act ('APA'), or general principles of administrative law with respect to the procedures to be followed in making any determination required herein or as to the substance of any such determination. No provision of this Agreement shall be interpreted as, or constitute, a commitment or requirement that Defendants take any action in contravention of the ESA, the APA, or any other law or regulation, either substantive or procedural."