[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]


     EXAMINING POLICY IMPACTS OF EXCESSIVE LITIGATION AGAINST THE 
                      DEPARTMENT OF THE INTERIOR

=======================================================================

                            OVERSIGHT HEARING

                               BEFORE THE

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 OF THE

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        Wednesday, June 28, 2017

                               __________

                           Serial No. 115-12

                               __________

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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
  Chairman Emeritus                  Madeleine Z. Bordallo, GU
Louie Gohmert, TX                    Jim Costa, CA
  Vice Chairman                      Gregorio Kilili Camacho Sablan, 
Doug Lamborn, CO                         CNMI
Robert J. Wittman, VA                Niki Tsongas, MA
Tom McClintock, CA                   Jared Huffman, CA
Stevan Pearce, NM                      Vice Ranking Member
Glenn Thompson, PA                   Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Donald S. Beyer, Jr., VA
Raul R. Labrador, ID                 Norma J. Torres, CA
Scott R. Tipton, CO                  Ruben Gallego, AZ
Doug LaMalfa, CA                     Colleen Hanabusa, HI
Jeff Denham, CA                      Nanette Diaz Barragan, CA
Paul Cook, CA                        Darren Soto, FL
Bruce Westerman, AR                  Jimmy Panetta, CA
Garret Graves, LA                    A. Donald McEachin, VA
Jody B. Hice, GA                     Anthony G. Brown, MD
Aumua Amata Coleman Radewagen, AS    Wm. Lacy Clay, MO
Darin LaHood, IL
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT

                 Todd Ungerecht, Acting Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
                                 ------                                

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                     BRUCE WESTERMAN, AR, Chairman
           A. DONALD McEACHIN, VA, Ranking Democratic Member

Louie Gohmert, TX                    Ruben Gallego, AZ
Raul R. Labrador, ID                 Jared Huffman, CA
Aumua Amata Coleman Radewagen, AS    Darren Soto, FL
Mike Johnson, LA                     Wm. Lacy Clay, MO
  Vice Chairman                      Raul M. Grijalva, AZ, ex officio
Jenniffer Gonzalez-Colon, PR
Rob Bishop, UT, ex officio
                              -----------                                
                               
                               CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, June 28, 2017.........................     1

Statement of Members:
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     4
        Prepared statement of....................................     5
    Johnson, Hon. Mike, a Representative in Congress from the 
      State of Louisiana.........................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Barron, Mark S., Partner, BakerHostetler, Denver, Colorado...    10
        Prepared statement of....................................    12
        Questions submitted for the record.......................    19
    Jorjani, Daniel, Principal Deputy Solicitor, Office of the 
      Solicitor, U.S. Department of the Interior, Washington, DC.     6
        Prepared statement of....................................     8
        Questions submitted for the record.......................     9
    Lobdell, Caroline, Executive Director and Supervising 
      Attorney, Western Resources Legal Center, Portland, Oregon.    28
        Prepared statement of....................................    29
        Questions submitted for the record.......................    31
    Schiffer, Lois, Former General Counsel, National Oceanic and 
      Atmospheric Administration, Washington, DC.................    20
        Prepared statement of....................................    22
        Questions submitted for the record.......................    25

Additional Materials Submitted for the Record:
    Department of the Interior, Director Jonathan Jarvis, January 
      31, 2017 Memorandum to the Department of the Interior 
      Regional Director for the Pacific West Region..............    44
    List of documents submitted for the record retained in the 
      Committee's official files.................................    52
    Western Watersheds Project, Greta Anderson, Deputy Director, 
      July 3, 2017 Letter to the House Committee on Natural 
      Resources..................................................    52
                                     


 
 OVERSIGHT HEARING ON EXAMINING POLICY IMPACTS OF EXCESSIVE LITIGATION 
                 AGAINST THE DEPARTMENT OF THE INTERIOR

                              ----------                              


                        Wednesday, June 28, 2017

                     U.S. House of Representatives

              Subcommittee on Oversight and Investigations

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:08 a.m., in 
room 1324, Longworth House Office Building, Hon. Mike Johnson 
[Vice-Chairman of the Subcommittee] presiding.
    Present: Representatives Radewagen, Bergman, Johnson; 
Huffman, Soto, Clay, and Grijalva.
    Also present: Representatives McClintock, Pearce, Gosar; 
and Barragan.
    Mr. Johnson. The Subcommittee on Oversight and 
Investigations will come to order. Thank you all for being here 
this morning.
    The Subcommittee is meeting today to hear testimony on 
``Examining Policy Impacts of Excessive Litigation Against the 
Department of the Interior.''
    Under Committee Rule 4(f) any oral opening statements at 
hearings are limited to the Chairman, the Ranking Minority 
Member, the Vice-Chair, and the Vice-Ranking Member. Therefore, 
I ask unanimous consent that all other Members' opening 
statements be made part of the hearing record if they are 
submitted to the Subcommittee Clerk by 5:00 p.m.
    Hearing no objections, so ordered.
    Also, I ask unanimous consent that the gentleman from 
California, Mr. McClintock; the gentleman from New Mexico, Mr. 
Pearce; the gentleman from Arizona, Mr. Gosar; the gentleman 
from California, Mr. Costa; and the gentlelady from California, 
Ms. Barragan, be allowed to sit with us today in the 
Subcommittee, and participate in the hearing.
    Hearing no objection, that is so ordered.
    I will now recognize myself for 5 minutes for an opening 
statement.

    STATEMENT OF THE HON. MIKE JOHNSON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF LOUISIANA

    Mr. Johnson. Today we will explore how litigation against 
the Department of the Interior impacts the Department's ability 
to carry out its mission of managing our country's vast natural 
resources and trust responsibilities. Legal actions shape 
agency decision making and influence its policies.
    While a case may involve only the Department and a 
plaintiff, the parties to the suit are not the only ones bound 
by the outcome. In reality, a legal sub-industry has thrived 
from endless environmental litigation, while burdening the 
livelihoods of countless citizens. The costs also include the 
inhibition of multiple use and sustained yield, as well as 
species recovery. Excessive litigation against the Department 
drains our taxpayer dollars away from good stewardship of our 
natural resources.
    Our legal system is an important avenue for citizens 
seeking redress of wrongs perpetrated by the Federal 
Government. Litigation, like legislative and regulatory 
processes, is intended to provide a crucial check against 
agency over-reach.
    However, special interests repeatedly exploit our legal 
system to further their own agendas, and sidestep the 
legislative and regulatory processes. Excessively litigious 
organizations constantly abuse opportunities to impede agency 
actions, simply because they generally oppose a particular land 
use, species management, or trust activity.
    Litigation begets litigation, and some of our current laws, 
including the Equal Access to Justice Act, perpetuate the cycle 
by allowing plaintiffs to collect attorney's fees above a 
statutory cap for suing the Federal Government. Originally 
intended to ease the burden on individuals and small businesses 
that contest government actions, activist groups now leverage 
the holes in this law as a weapon to paralyze agency actions, 
finance endless lawsuits, and drain taxpayer dollars away from 
important programs.
    Today, we hope to identify some of the incentives that 
facilitate repeat plaintiffs and obstructionist litigation. We 
will also discuss potential solutions that may be available to 
curb excessive lawsuits, and we are seeking some transparency 
into the process.
    Previous Subcommittee efforts to learn more about the 
opaque litigation process and the true volume and nature of 
litigation against the Interior have produced little useful 
information. Publicly available resources, such as the 
Interior's budget justifications and the Judgment Fund online 
database, provide an incomplete picture.
    We also hope to learn more about the nature of the 
relationship and collaboration between the Department of 
Justice and Interior's Office of the Solicitor in managing 
litigation against the Department of the Interior.
    For example, last December, the Subcommittee sent a letter 
to then-Secretary Jewell requesting information about 
settlement agreements with Native American tribes in excess of 
$3.3 billion in the previous administration. The Subcommittee 
is still waiting to receive a substantive response to some of 
the requested information.
    The Subcommittee eventually learned that the Solicitor's 
Office does not keep centralized records regarding litigation 
against the Department and resulting settlements. There are 
also no Department-kept records of which statutes generate the 
most litigation. The Justice Department also does not track the 
quantity of suits filed against the Interior Department 
compared to those against other departments in the Federal 
Government.
    In addition to leaving the public with little insight 
regarding pending and finalized litigation that affects their 
lives, the lack of reporting and recordkeeping deprives the 
Congress and the agency of a chance to identify vulnerabilities 
created by excessive legal action and challenges.
    We look forward to learning more about the Department's 
processes for dealing with litigation and any efforts it may 
undertake to become more transparent and accountable in 
tracking litigation in the future.
    There is an expectation that the problem will worsen as 
opponents of domestic energy resource development and multiple-
use principles utilize the court system as a weapon to advance 
their agendas. In fact, in its most recent budget 
justification, the Department's Office of the Solicitor 
reported that it is bracing for an ``influx of litigation,'' 
including litigation on ``every major permitting decision 
authorizing energy development on Federal land.''
    I look forward to hearing from our witnesses, and we thank 
them again, and in advance, for their testimony today.
    [The prepared statement of Mr. Johnson follows:]
      Prepared Statement of the Hon. Mike Johnson, Vice Chairman, 
              Subcommittee on Oversight and Investigations
    Today, we will explore how litigation against the Department of the 
Interior impacts the Department's ability to carry out its mission of 
managing our country's vast natural resources and trust 
responsibilities. Legal actions shape agency decision making and 
influence its priorities. While a case may involve only the Department 
and a plaintiff, the parties to the suit are not the only ones bound by 
the outcome. In reality, a legal sub-industry has thrived from endless 
environmental litigation while burdening the livelihoods of countless 
citizens. The costs also include the inhibition of multiple use and 
sustained yield as well as species recovery. Excessive litigation 
against the Department drains our taxpayer dollars away from good 
stewardship of our natural resources.
    Our legal system is an important avenue for citizens seeking 
redress of wrongs perpetrated by the Federal Government. Litigation, 
like legislative and regulatory processes, is intended to provide a 
crucial check against agency over-reach. However, special interests 
repeatedly exploit our legal system to further their own agendas and 
sidestep the legislative and regulatory processes. Excessively 
litigious organizations constantly abuse opportunities to impede agency 
actions simply because they generally oppose a particular land use, 
species management, or trust activity.
    Litigation begets litigation and some of our current laws, 
including the Equal Access to Justice Act, perpetuate the cycle by 
allowing plaintiffs to collect attorney's fees above a statutory cap 
for suing the Federal Government. Originally intended to ease the 
burden on individuals and small businesses that contest government 
actions, activist groups now leverage the holes in this law as a weapon 
to paralyze agency actions, finance endless lawsuits, and drain 
taxpayer dollars away from important programs.
    Today, we hope to identify some of the incentives that facilitate 
repeat plaintiffs and obstructionist litigation. We also will discuss 
potential solutions that may be available to curb excessive lawsuits. 
We are also seeking some transparency into the process.
    Previous Subcommittee efforts to learn more about the opaque 
litigation process and the true volume and nature of litigation against 
Interior have produced little useful information. Publicly available 
resources such as Interior's budget justifications and the Judgement 
Fund online database provide an incomplete picture. We also hope to 
learn more about the nature of the relationship and collaboration 
between the Department of Justice and Interior's Office of the 
Solicitor in managing litigation against the Department of the 
Interior.
    For example, last December, the Subcommittee sent a letter to then-
Secretary Jewell requesting information about settlement agreements 
with Native American tribes in excess of $3.3 billion from the previous 
administration. The Subcommittee is still waiting to receive a 
substantive response to some of the requested information.
    The Subcommittee eventually learned that the Solicitor's Office 
does not keep centralized records regarding litigation against the 
Department and resulting settlements. There are also no Department-kept 
records of which statues generate the most litigation. The Justice 
Department also does not track the quantity of suits filed against the 
Interior Department compared to those against other departments in the 
Federal Government.
    In addition to leaving the public with little insight regarding 
pending and finalized litigation that affects their lives, the lack of 
reporting and recordkeeping deprives Congress and the agency of a 
chance to identify vulnerabilities created by excessive legal action 
and challenges. We look forward to learning more about the Department's 
processes for dealing with litigation, and any efforts it may undertake 
to become more transparent and accountable in tracking litigation in 
the future.
    There is an expectation that the problem will worsen as opponents 
of domestic energy resource development and multiple use principles 
utilize the court system as a weapon to advance their agendas. In fact, 
in its most recent budget justification, the Department's Office of the 
Solicitor reported that it is bracing for ``an influx of litigation,'' 
including ``litigation on every major permitting decision authorizing 
energy development on Federal land.''
    I look forward to hearing from our witnesses and thank them for 
their testimony.

                                 ______
                                 

    Mr. Johnson. Since the Ranking Member of our Subcommittee, 
Mr. McEachin, could not be here this morning, the Chairman now 
recognizes the Ranking Member of the Full Committee, Mr. 
Grijalva, for 5 minutes for an opening statement.

  STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much, Mr. Chairman. I would 
like to welcome all the witnesses, with a special welcome to 
Lois Schiffer, who is taking time away from a well-deserved 
retirement to testify on very, very short notice. I appreciate 
that very much. Lois' experience and perspective will be 
critical to this hearing.
    The premise of this hearing is false. Judges are already 
empowered to deal with litigation that is without merit or 
frivolous, including the authority to punish attorneys for 
pursuing abusive litigation. The number of cases where courts 
use that authority is small, and it happens no more often with 
environmental litigation than with any other kinds of cases.
    So, why does the Interior Department get sued? Because it 
fails to live up to the standards set by this Congress for 
managing our natural, cultural, and historical resources.
    Who sues the Interior Department? Non-profit organizations 
seeking to uphold the standards we set, average citizens who 
want their government to be more accountable, and industry, 
when they think they are getting a raw deal.
    Why does the Interior Department lose when they get sued? 
Often, it is because this Congress has failed to give agencies 
the people and the money they need to meet the demands that are 
placed on them.
    House Republicans set out to cripple these agencies, to 
prevent NEPA, ESA, or the Clean Water Act from being enforced, 
and then hold hearings bemoaning the fact that there is so much 
litigation and the process is too slow. Too often, it seems 
like my Republican colleagues are starting the fire one day, 
and then they are firefighters the next.
    The ability to sue the government and win leads to better 
policy outcomes, more faith in government, more stable and 
predictable regulations over time, and can save enormous 
amounts of money compared to big government schemes that are 
put in place and never challenged, no matter how ill-conceived 
or unfair they turn out to be.
    This litigation is not excessive, and the doors to the 
courthouse do not need to be slammed shut in the name of 
efficiency.
    My Republican colleagues need to make up their minds. Are 
judges power-mad, judicial activists, or are they just 
defenseless victims being abused by environmental lawyers? The 
truth is, they are neither.
    You will hear no evidence today that environmental 
plaintiffs are subject to more fines or punishments than any 
other kind of plaintiffs. This is not a real problem. The irony 
is, courts have strict standards requiring honesty and evidence 
in pleadings and rulings, and there are standards that most 
hearings in Congress, including this one, could never meet.
    If House Republicans think we should no longer enforce the 
Endangered Species Act or NEPA, they should have the courage to 
go before the voters with plans to repeal these laws. What they 
should not do is attack citizens and businesses who seek help 
from the courts to enforce those laws as a back-door way to 
undermine statutes they don't like. This is exactly the kind of 
misleading and unfair tactic a responsible judge would throw 
out of court.
    With that, Mr. Chairman, I yield back.
    [The prepared statement of Mr. Grijalva follows:]
   Prepared Statement of the Hon. Raul M. Grijalva, Ranking Member, 
                     Committee on Natural Resources
    Thank you Mr. Chairman.
    I'd like to welcome all of our witnesses, with a special welcome to 
Lois Schiffer, who is taking time away from her well-deserved 
retirement to testify on very short notice. Lois' experience and 
perspective will be critical to this hearing.
    The premise of this hearing is false.
    Judges are already empowered to deal with litigation that is 
without merit or frivolous, including the authority to punish attorneys 
for pursuing abusive litigation. The number of cases where courts use 
that authority is small, and it happens no more often with 
environmental litigation than in other kinds of cases.
    My Republican colleagues need to make up their minds: are judges 
power-mad, judicial activists, or are they defenseless victims being 
abused by environmental lawyers? The truth is, they are neither.
    You will hear no evidence today that environmental plaintiffs are 
subject to more fines or punishments than any other kinds of 
plaintiffs.
    This is not a real problem.
    The irony is, courts have strict standards requiring honesty and 
evidence in pleadings and rulings, and those are standards that most 
hearings in this Congress, including this one, could never meet.
    Why does the Interior Department get sued?
    Because it fails to live up to the standards set by this Congress 
for managing our natural, cultural, and historic resources.
    Who sues the Interior Department?
    Non-profit organizations seeking to uphold the standards we set, 
average citizens who want their government to be more accountable, and 
industry when they think they are getting a raw deal.
    Why does the Interior Department lose when they get sued?
    Often, it's because this Congress has failed to give agencies the 
people and money they need to meet the demands we have placed on them.
    House Republicans set out to cripple these agencies, to prevent 
NEPA, or ESA, or the Clean Water Act from being enforced, and then hold 
hearings bemoaning the fact that there is so much litigation.
    Too often, is seems like my Republican colleagues are arsonists one 
day, and firefighters the next.
    The ability to sue the government and win leads to better policy 
outcomes, more faith in government, more stable and predictable 
regulations over time, and can save enormous amounts of money compared 
to big government schemes that are put in place and never challenged, 
no matter how ill-conceived or unfair they turn out to be.
    This litigation is not ``excessive'' and the doors to the 
courthouse don't need to be slammed shut in the name of ``efficiency.''
    If House Republicans think we should no longer enforce the 
Endangered Species Act or NEPA, they should have the courage to go 
before the voters with plans to repeal those laws.
    What they should NOT do is attack the citizens and businesses who 
seek help from the courts to enforce those laws as a back-door way to 
undermine statutes they don't like. That is exactly the kind of 
misleading and unfair tactic a responsible judge would throw out of 
court.
    I yield back.

                                 ______
                                 

    Mr. Johnson. Thank you. I will now introduce today's 
witnesses.
    Mr. Daniel Jorjani is the Principal Deputy Solicitor within 
the Office of the Solicitor at the Department of the Interior.
    Mr. Mark Barron is a partner at BakerHostetler in Denver, 
Colorado, and is also a former trial attorney at the Department 
of Justice's Environment and Natural Resources Division.
    Ms. Lois Schiffer is the former General Counsel of the 
National Oceanic and Atmospheric Administration, as well as 
former Assistant Attorney General for the Department of 
Justice's Environment and Natural Resources Division.
    Ms. Caroline Lobdell is the Executive Director and 
Supervising Attorney at the Western Resources Legal Center in 
Portland, Oregon, in addition to being a faculty member at 
Lewis and Clark Law School.
    Thank you all again for being here.
    Let me remind the witnesses that under the Committee Rules, 
oral statements must be limited to 5 minutes, but your entire 
written statement will appear in the hearing record.
    In regards to testimony and questions, our microphones are 
not automatic, so you need to press the talk button in front of 
you before speaking into the microphone. When you begin, the 
lights on the witness table will turn green. When you have 1 
minute remaining, the yellow light will come on. Your time will 
have expired when the red light comes on, and I may ask you to 
please conclude your statement.
    I will also allow the entire panel to testify before we 
begin questioning the witnesses.
    The Chair will now recognize Mr. Jorjani for his testimony 
for 5 minutes.

STATEMENT OF DANIEL JORJANI, PRINCIPAL DEPUTY SOLICITOR, OFFICE 
OF THE SOLICITOR, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, 
                               DC

    Mr. Jorjani. Vice-Chairman Johnson, Ranking Member 
Grijalva, members of the Subcommittee, thank you for the 
opportunity to appear before you today to discuss the impacts 
of excessive litigation against the U.S. Department of the 
Interior.
    My name is Daniel Jorjani. I serve as both the Principal 
Deputy Solicitor and Acting Solicitor at DOI, where I have the 
privilege of leading the Nation's premier team of natural 
resource lawyers. I am also proud to be part of the Department-
wide team led by Secretary of the Interior, Ryan Zinke.
    DOI plays an important role in advancing President Trump's 
domestic policy vision for our Nation, including advancing the 
American First energy policy, reducing regulatory burdens, and 
rebuilding our Nation's infrastructure, while at the same time 
protecting the environment.
    Interior oversees the responsible, onshore and offshore 
development of 20 percent of U.S. energy supplies, stewards 20 
percent of the Nation's land, including national parks and 
wildlife refuges, and serves as the largest water provider in 
the 17 western states.
    Interior also works with federally recognized tribes, 
American Indians, Alaska Natives, and insular communities, such 
as American Samoa, Guam, the U.S. Virgin Islands, and the 
Northern Marianas.
    As would be expected for an agency with such a diverse 
mission, the legal work carried out in the Solicitor's Office 
is equally diverse, providing legal advice to client bureaus, 
including on both judicial and administrative matters.
    While the mission of the Department is great, and while our 
lawyers always seek to conduct themselves with humility, 
integrity, and professionalism, our work is often 
controversial, and we are frequently sued in Federal court.
    DOJ handles litigation in which DOI is a party. DOI, 
therefore, does not have the legal authority to litigate or 
settle cases on our own. We work very, very closely with DOJ to 
defend the lawful actions of DOI, and follow long-standing DOJ 
policies that restrict settlements from converting 
discretionary authorities into mandatory duties.
    Any proposal to settle litigation receives a careful legal 
assessment by DOI counsel, is reviewed, and if appropriate, 
approved at DOJ in accordance with DOJ protocols and policies. 
In doing so, we work with DOJ to prepare legal defenses of 
agency action, support litigation through discovery or the 
preparation of administrative records, and assess litigation 
risk and the effect of continued litigation on the operations 
of the Department.
    As employees of the Federal Government, attorneys in the 
Solicitor's Office have a professional responsibility to serve 
the Secretary of the Interior and the officials to whom he has 
delegated his authority. Attorneys are also bound by the rules 
of professional conduct. This means we must represent our 
clients, rather than external interests.
    Many settlements, such as those resolving class actions or 
requiring consent decrees, are also reviewed and approved by 
the presiding judges in the matter. These reviews by the 
Federal judiciary ensure that the settlements are consistent 
with the law, and are in the public interest.
    When appropriately utilized, settlements can create value 
by allowing for amicable resolution of disputes on terms 
acceptable to all stakeholders, eliminating the risk of adverse 
decisions that could impact future agency operations, saving 
taxpayer dollars by reducing the amount paid in litigation, and 
including terms to minimize, effectively and efficiently, the 
risk of future litigation.
    While the system is certainly not perfect, under our watch, 
there will be no collusive settlements.
    Ultimately, the Department has a duty to uphold the highest 
standards on behalf of the taxpayers we serve. Moving forward, 
Secretary Zinke signed Secretary's Order 3349, which revoked 
the compensatory mitigation policies of the previous 
administration, and directed a robust and thorough review, so 
that we can shift to a more accountable process. This is just 
one example of the work we are doing, but we appreciate the 
opportunity to work with you and the members of this Committee 
to create value on this important issue.
    I look forward to answering any questions that you might 
have. Thank you.
    [The prepared statement of Mr. Jorjani follows:]
   Prepared Statement of Daniel Jorjani, Principal Deputy Solicitor, 
                       Department of the Interior
    Chairman Labrador, Ranking Member McEachin, Members of the 
Subcommittee, thank you for the opportunity to appear before you today 
to discuss the impacts of excessive litigation against the Department 
of the Interior. My name is Dan Jorjani and I was recently appointed to 
be the Principal Deputy Solicitor at the Department.
    The Office of the Solicitor is responsible for providing legal 
services for all programs, operations, and activities of the 
Department. As the Principal Deputy Solicitor, I oversee the work of 
the attorneys in the Solicitor's Office, who provide advice, counsel, 
and legal representation to the Secretary, the Assistant Secretaries, 
and the bureaus and offices overseen by the Secretary. As would be 
expected by such a large agency with diverse missions, the legal work 
carried out in the Solicitor's Office is equally as diverse, including 
both judicial and administrative matters.
    While the mission of the Department is great, our work is also 
often controversial and we are often sued in Federal court. The 
Department of Justice handles litigation in which the Department of the 
Interior is a party. The Department of the Interior's policy decision 
makers and lawyers therefore do not have the legal authority to 
litigate or settle cases on our own.
    However, the Solicitor's Office performs an important service to 
the Department in providing legal advice to client bureaus and, 
ultimately, the Department of Justice on whether to litigate or settle 
cases. In doing so, Solicitor's Office attorneys work with Department 
of Justice attorneys to prepare legal defenses of agency action, 
support litigation through discovery or the preparation of 
administrative records, assess litigation risk and the effect of 
continued litigation on the operations of the Department, and work with 
the affected client bureaus and Department officials to determine 
whether settlement is in the best interests of the agency and the 
United States.
    As employees of the Federal Government, attorneys in the 
Solicitor's Office have a professional responsibility to serve the 
Secretary of the Interior and the officials to whom he has delegated 
his authority. Attorneys are also bound to the rules of professional 
conduct, which means we must represent our clients rather than external 
interests.
    Any proposal to settle litigation receives a careful legal 
assessment by agency counsel and is assessed and, if appropriate, 
approved by attorneys and officials at the Department of Justice, in 
accordance with its regulations and policies.
    Many settlements, such as those resolving class actions or 
requiring consent decrees, are also reviewed and approved by the 
presiding judges in the matter. These reviews by the Federal judiciary 
ensure that the settlements are consistent with the law and are in the 
public interest. Courts can and have refused to approve consent decrees 
or other settlements that are not consistent with the law.
    When appropriately utilized, settlements can be useful and 
beneficial: they can allow for amicable resolution of disputes on terms 
acceptable to all stakeholders; save taxpayer dollars by reducing the 
amount paid in litigation and associated attorneys' fees; eliminate the 
risk of adverse decisions that could impact future agency operations; 
include terms to minimize the risk of future litigation; and conserve 
judicial, agency, and private party resources.
    However, the system certainly is not perfect.
    Ultimately, the Department and the rest of the Federal Government 
has a duty to uphold the highest standards on behalf of the taxpayers 
we serve. For example, Secretary Zinke signed S.O. 3349 which revoked 
the compensatory mitigation policies of the previous administration and 
directed a thorough review so we can shift to a more fair and 
accessible process. This is just one example of the work we are doing, 
but we appreciate the opportunity to work with you and the members of 
this Committee to increase transparency and accountability at all 
levels.

    I look forward to answering any questions you might have.

                                 ______
                                 

Questions Submitted for the Record by Rep. McEachin to Daniel Jorjani, 
Principal Deputy Solicitor, Office of the Solicitor, U.S. Department of 
                              the Interior

    Question 1. Deeply troubling cases of sexual harassment at the Park 
Service have come to light in recent years. The previous administration 
at the Department of the Interior left a transition briefing book which 
revealed that the high profile sexual harassment cases at the Park 
Service have spurred about 120 new sexual harassment and related 
reprisal allegations at the Department of the Interior that need to be 
resolved. The brief went on to say ``Because the Employment and Labor 
Law Unit's existing resources were inadequate to manage and litigate 
these cases, as well as to undertake efforts necessary to ensure such 
cases do not recur in the future, the Division of General Law requested 
client funding to hire six new experienced employment and labor law 
attorneys . . .'' These attorneys don't just litigate cases; they also 
provide guidance to supervisors who have to investigate allegations 
themselves. When I checked 3 weeks ago to see whether the attorneys 
were hired, I learned that all six had not been hired; Secretary 
Zinke's hiring freeze prevented the rest from moving forward.

  a.   Have you been briefed on the sexual harassment issue at NPS as 
            well as the rest of the Department? When were you briefed? 
            Who briefed you?

  b.   Have you read the brief from the previous administration?

  c.   Have you taken any action(s) recommended in the brief? If yes, 
            what actions have you taken?

  d.   At the time of the writing of the briefing transition book, 
            there was a backlog of approximately 120 potential sexual 
            harassment cases that awaited action from the Department of 
            the Solicitor's Office. What is the size of that backlog 
            now? When you expect the backlog to be eliminated?

  e.   Of the six attorneys, how many have you hired? Of those, please 
            list their first day of work.

  f.   Have you requested of the Secretary that he hire some or all of 
            these attorneys? What response did you get and from whom?

  g.   Have you discussed with your staff the need to fill these 
            positions?

  h.   Have you proposed making an exception to the hiring freeze to 
            fill the six attorney positions that were recommended in 
            the brief?

  i.   Has Secretary Zinke instructed you to treat sexual harassment as 
            a high priority in the Office of the Solicitor? If so, 
            when?

  j.   If the Office of the Solicitor does not hire all six attorneys, 
            what is the plan for addressing the backlog of potential 
            sexual harassment cases?

    Answer. Secretary Zinke said at his confirmation hearing that he 
takes issues of sexual assault and harassment seriously and that there 
will be zero tolerance for it at the Department under his leadership. 
The entire transition team was briefed on these allegations, and we 
continue to monitor the progress of the National Park Service's 
implementation of a variety of initiatives to address these issues. To 
date, the NPS has:

     Hired a Sexual Harassment Prevention and Response 
            Coordinator to help develop and coordinate a strategic 
            response and began tracking statistics related to employee 
            misconduct;

     Realigned the NPS Equal Employment Opportunity Office to 
            report to the Director of the NPS;
     Implemented online sexual harassment awareness training 
            for employees and issued a Harassment Prevalence Survey, in 
            which almost 50 percent of employees responded. That survey 
            will be given to the seasonal workforce this summer. The 
            survey results will provide information about the extent 
            and nature of the problem and will inform design of 
            additional anti-harassment initiatives.

     Trained 24 employees to instruct Civil Treatment for 
            Leaders , which seeks to prevent harassment and improve 
            civility in the NPS. All supervisory employees are required 
            to take the 4-hour in-person training in 2017 and 2018.

     Established the NPS Ombuds program, which explores the 
            confidential resolution of workforce problems. The Ombuds 
            will visit 24 parks, park clusters, or regional offices to 
            gather input and feedback by the end of 2017.

    In addition, a culture change team with representatives from the 
Equal Employment Opportunity Program, the NPS Office of Relevancy, 
Diversity and Inclusion, and field representatives are assessing 
structural issues related to information sharing, communication, trust, 
employee support resources and training, and policies and procedures 
for reporting, tracking, investigating and disciplining harassment are 
being revised to ensure transparency and accountability. In the 
Solicitor's Office, the Employment Law and Litigation Group has in the 
past 6 months increased its staffing and we continue to closely monitor 
the Group's caseload to ensure that the Department's legal needs are 
met and that managers have the tools and support they need to create a 
positive work environment free from discrimination and harassment.

                                 ______
                                 

    Mr. Johnson. Thank you, Mr. Jorjani.
    The Chair now recognizes Mr. Barron for his testimony.

 STATEMENT OF MARK S. BARRON, PARTNER, BAKERHOSTETLER, DENVER, 
                            COLORADO

    Mr. Barron. Good morning. I would like to thank the Vice 
Chair, the Ranking Member, and the Committee for the 
opportunity to testify this morning. My name is Mark Barron. I 
am a partner in the BakerHostetler law firm in Denver, 
Colorado. Today, I speak on my own behalf.
    I would like to preface my statement with a few 
clarifications regarding my testimony.
    First, it is not my opinion that excessive litigation is 
the sole reason that the Department of the Interior is 
frequently unable to execute its mission consistent with the 
statutory parameters that define the agency's obligations. 
Interior is the custodian of much of our Nation's natural 
resources wealth, particularly the Federal mineral estate and 
many of our most treasured landscapes.
    Earlier in my career, I had the opportunity to serve in the 
Environment and Natural Resources Division at the Department of 
Justice. During that time, I represented many of the agencies 
whose work is implicated in this hearing today, including BLM, 
the Bureau of Indian Affairs, the National Park Service, the 
Forest Service, the Corps of Engineers, the Mineral Management 
Service, and the Bureau of Reclamation. These agencies are 
staffed by hard-working and well-meaning public servants. Their 
job is difficult and complex, and the resources with which they 
are asked to perform their tasks are almost always scarce.
    Nor am I suggesting that litigation challenges to 
government conduct are improper, per se. The fact that citizens 
have the ability to hold the government accountable when it 
acts in error is one of the hallmarks of our democracy.
    But with this as background, my experience and the 
experience of our clients suggest that certain parties have 
abused aspects of the current system to exacerbate the 
challenges that the agencies face under the best of 
circumstances. The result is policy being driven by 
ideologically motivated litigants who choose cases not based on 
legal merits, but on what makes the biggest political splash.
    In my personal practice, I am more often than not working 
with independent energy companies seeking to develop energy 
projects on Federal lands. When counseling these companies, the 
likelihood, if not certainty, of litigation features 
prominently in project planning and the advice that we provide.
    In my written testimony, I detailed the cycle of an oil and 
gas project and some of the deadlines that apply to those 
projects. Under the Mineral Leasing Act, the Department of the 
Interior is mandated to offer leases quarterly in all states in 
which eligible parcels are available for leasing. That deadline 
is almost never met. Over the last several years, most of the 
large public land states have offered leasing, at most, two to 
three times per year.
    In a lawsuit pending currently in the District of New 
Mexico, environmental groups who are attempting to intervene in 
that lawsuit have acknowledged that those lease sales have been 
canceled, based on administrative protests that environmental 
groups have filed.
    When lease sales are conducted, the Mineral Leasing Act 
requires that leases are issued to the successful bidders 
within 60 days from payment for the bonus bids. Again, a 
Federal judge in the District of Wyoming has found that that 
obligation is mandated by statute. That is another deadline 
that is almost never met.
    Once leases are issued, the Mineral Leasing Act requires 
that within 10 days of an application for a permit to drill, 
the Interior Department--or BLM, specifically--identify to the 
operator whether or not the application is complete. And if it 
is not complete, what is missing.
    Once an application is complete, BLM has 30 days under 
statute to either issue the permit or explain why the permit is 
not being issued, and provide estimates of the amount of time 
it will require to process the permit. Again, this deadline is 
virtually never met in the field.
    Our clients report that oftentimes, when they interact with 
field offices and ask why these deadlines are not met, it is 
reported to them that it is because field office personnel is 
being used to respond to and support efforts to defend 
lawsuits.
    I want to talk briefly before my time runs out on the 
parties that are involved in these lawsuits. The public 
perception is that these cases are driven by big oil and big 
energy. The reality is drastically different.
    Most of American energy production is driven by small, 
independent, family-owned companies. The median size of a 
member of the Independent Petroleum Association of America is 
12 people--a 12-member company. These people compete in court 
against, essentially, law firms and lobbying groups who use 
litigation to raise money, and then rely on the fee transfer 
provisions in the statutes to fund their next litigation.
    Recently, in the press, these organizations have 
acknowledged that their current initiatives are politically 
driven. The result is, beyond delays, land management policy 
being crafted not by this body or even the agencies themselves, 
but by Federal judges.
    I thank the Committee.
    [The prepared statement of Mr. Barron follows:]
Prepared Statement of Mark S. Barron, Partner, BakerHostetler Law Firm, 
                            Denver, Colorado
    Mark S. Barron is a partner in the national energy practice group 
of the BakerHostetler law firm. Mr. Barron's practice is focused on 
natural resources litigation and environmental law, with special 
emphasis on the administration of Federal public lands (including 
tribal lands) and energy production. The majority of Mr. Barron's work 
is comprised of litigation and regulatory matters, with a smaller 
percentage involving corporate transactions between energy companies.

    Mr. Barron's work touches on most aspects of environmental and 
natural resources law--particularly as that law is applied to 
commercial activity on public lands. Mr. Barron is a leading national 
practitioner with extensive experience related to onshore and offshore 
oil and gas operations and regulation, including matters involving 
leasing and permitting delays and suspensions. He is counsel to both 
individual companies and national trade associations on issues 
concerning the regulation of hydraulic fracturing, the administration 
of the Federal oil and gas leasing program, Federal royalty calculation 
and reporting, and the environmental impact of energy projects.

    Before entering private practice, Mr. Barron served as a trial 
attorney for the U.S. Department of Justice in the Environment & 
Natural Resources Division. As a member of the Natural Resources 
Section, Mark's practice focused on environmental takings claims, 
administrative challenges to mineral and resource development on 
Federal public lands, and Federal management of natural resources on 
tribal lands. In that capacity, Mr. Barron represented numerous 
components of the Department of the Interior as well as other Federal 
land management agencies in Federal litigation. Mr. Barron has 
represented, among other agencies: the Bureau of Land Management, the 
Bureau of Indian Affairs, the Fish & Wildlife Service, the National 
Park Service, the U.S. Forest Service, the U.S. Army Corps of 
Engineers, the Minerals Management Service, the Bureau of Reclamation, 
and the Surface Transportation Board.

    Mr. Barron is a graduate of Cornell University and a magna cum 
laude graduate of the University of New Mexico School of Law where he 
earned membership to the Order of the Coif and served on the New Mexico 
Law Review. A prolific author and speaker on topics affecting energy 
producers, Mr. Barron has been featured or quoted in dozens of industry 
and mainstream media outlets on topics related to energy policy, 
hydraulic fracturing, and commercial development on public lands. In 
2016, Law360 selected Mr. Barron as a national ``Energy MVP.'' In 2015, 
Law360 named Mr. Barron one of five national ``Rising Stars'' in 
Energy--a designation given to the best attorneys in America under 40 
years of age.

                            i. introduction

    The Department of the Interior serves a critical function as the 
custodian of much of the Nation's natural resources wealth. In this 
role, the Department's agencies are required to perform daily a myriad 
of tasks to ensure the prudent and efficient development of resources 
in a manner that optimizes public benefits, promotes national security, 
and protects treasured landscapes. Under the best circumstances, 
meeting each of these objectives is a complex and onerous task. And 
Interior rarely, if ever, works under ``the best circumstances.'' Too 
often, special interest groups intent on preventing Interior from 
accomplishing its statutorily imposed mission are able to delay, 
compromise, or defeat the Department's ability to complete essential 
functions through the use (and abuse) of administrative and judicial 
litigation tactics.

    The best example of how Interior's agencies struggle to accomplish 
their mission is the administration of the Federal oil and gas leasing 
program. Since the turn of the new century, technical advancements that 
allow producers to identify promising sources of oil and gas and to 
extract hydrocarbons from previously inaccessible geologic formations, 
combined with the entrepreneurial ingenuity of American industry, have 
resulted in American energy companies reaching production levels once 
thought impossible. The accessibility of abundant oil and gas resources 
has transformed conventional understandings of the energy landscape, 
leading some to predict millions of new jobs and the 
reindustrialization of America as well as imminent American energy 
independence. But while domestic production has grown in recent years, 
the percentage of that production that is extracted from Federal lands 
has declined in the same period.\1\
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    \1\ Congressional Research Serv., U.S. Crude Oil & Natural Gas 
Prod. in Fed. & Nonfed. Areas, Figs. 1-2, at 3, 5 (June 22, 2016).

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


    .epsThe reasons for this divergence are not open to reasonable 
dispute. Under President Obama, executive agencies undertook an 
unprecedented campaign to expand the regulatory burdens imposed on oil 
and gas producers operating on Federal lands. These regulatory 
initiatives touched every component of oil and gas development, 
impacting, among other aspects: (i) the manner in which operators 
construct and complete wells; (ii) the requirements for maintenance and 
repair of wells; (iii) the methods by which produced oil and gas is 
transported to market; (iv) the value of production for royalty 
reporting; and (v) the contractual terms of Federal leases. These 
regulatory requirements--along with logistical efficiencies inherent in 
the Federal Government's management of the Nation's public lands--
represent an enormous incentive for operators to focus their efforts on 
state and private lands.
    There are signs that the current Administration intends to 
alleviate some of the more egregious administrative obstacles that 
domestic energy producers face. Both the President and the Secretary of 
the Interior have recently directed executive agencies to evaluate 
whether existing rules and policies impose unreasonable burdens on the 
production of Federal minerals. On March 28, 2017, President Trump 
signed an Executive Order directing all Federal agencies to enact 
policies ``to promote clean and safe development of our Nation's vast 
energy resources'' and to avoid ``burdens that unnecessarily encumber 
energy production, constrain economic growth, and prevent job 
creation.'' \2\ On the next day, March 29, 2017, Secretary Zinke issued 
Secretary's Order No. 3349. Order No. 3349 states that the Department 
of the Interior's objective ``is to identify agency actions that 
unnecessarily burden the development or utilization of the Nation's 
energy resources and support action to appropriately and lawfully 
suspend, revise, or rescind such agency actions as soon as 
practicable.''
---------------------------------------------------------------------------
    \2\ Exec. Order 13,783, Promoting Energy Independence & Econ. 
Growth (Mar. 28, 2017).

    But whereas the need to curtail excessive regulation has received 
attention from industry groups, media, and political figures, there is 
a second, less discussed complication for operators who wish to produce 
Federal minerals--the prolific amount of litigation that special 
interest groups initiate to slow or prevent development of Federal 
minerals. While the prospect of litigation is a burden often attendant 
to oil and gas development, that prospect has become a virtual 
certainty when working on Federal lands. And because the United States 
wears several hats in oil and gas exploration and development--
administrator, regulator, and market participant--there are numerous 
possible situations in which operators may find their projects enmeshed 
in challenges to how the United States has exercised its 
responsibilities and balanced its various roles.\3\
---------------------------------------------------------------------------
    \3\ Sometimes, of course, it is the operator itself that is 
compelled to sue to enforce its rights under the public land laws. But 
more often than not, it is third parties that attempt to use the courts 
to block or delay land use decisions of which they disapprove.

    Nor do these challenges represent ordinary lawsuits. Once a dispute 
arises and a legal challenge is filed, the burden litigation imposes on 
an operator is often more onerous when the United States is involved. 
First, a lack of understanding regarding how the Federal Government and 
its agencies are organized can make developing a legal strategy more 
difficult than it might otherwise be in a case involving only private 
litigants. Second, the effectively unlimited extent of the legal 
resources that both the Federal Government and special interest groups 
can wield makes prosecuting or defending a public lands case time 
consuming and prohibitively expensive. Third, jurisdictional 
limitations applicable to suits involving the government may confine 
litigation to specialty courts or administrative settings that require 
proceedings be conducted in locations far from the community in which 
the dispute is actually taking place and that apply unfamiliar and 
---------------------------------------------------------------------------
idiosyncratic rules.

                       ii. the litigation burden

    Given the attendant challenges, it is natural to question why an 
operator would ever choose to develop minerals on Federal lands. The 
reality is that, for most operators, the sheer scope of the 
government's landholdings make at least some involvement on Federal 
lands unavoidable. The Federal Government controls approximately one-
third of the Nation's surface area--nearly 650 million acres--and over 
700 million acres of Federal mineral estate.
[GRAPHIC] [TIFF OMITTED] T6166.003


    .epsParticularly for those operators who explore for and develop 
oil and gas in the western United States, avoiding Federal lands is 
essentially impossible. With the exception of fields in Texas, Federal 
lands dominate virtually all of the important fields being actively 
developed today west of the Mississippi River. Examples include, but 
are not limited to: the Permian and San Juan Basins in New Mexico; the 
Piceance Basin in Colorado; the Uinta Basin in Utah; the Green River, 
Wind River, and Powder River Basins in Wyoming; and to a lesser extent, 
the Bakken Shale in North Dakota.\4\
---------------------------------------------------------------------------
    \4\ The Federal Government controls more than 54 percent of the 
land in the 11 contiguous states west of the 100th Meridian: Arizona, 
48.06 percent; California, 45.3 percent; Colorado, 36.63 percent; 
Idaho, 50.19 percent; Montana, 29.92 percent; Nevada, 84.48 percent; 
New Mexico, 41.77 percent; Oregon, 53.11 percent; Utah, 57.45 percent; 
Washington, 30.33 percent; and Wyoming, 42.33 percent. See U.S. Gen. 
Serv. Admin., Fed. Real Prop. Profile at 18 & Table 16 (Sept. 30, 
2004). The Federal Government also controls more than 69 percent of the 
surface acreage in Alaska. See id.
[GRAPHIC] [TIFF OMITTED] T6166.004


    .epsExacerbating the challenges that operating on Federal lands 
present, special interest groups have not confined litigation 
challenges to those projects that fall within the boundaries of Federal 
lands. Several environmental statutes have provisions that apply--and 
can therefore be theoretically enforced--beyond the Federal property 
line. Special interest groups frequently attempt to manipulate the 
provisions of the Endangered Species Act, the Clean Water Act, the 
Clean Air Act, and the National Historic Preservation Act, among 
---------------------------------------------------------------------------
others, to disrupt development on and off Federal lands.

    And even where statutes don't reach beyond Federal boundaries 
expressly, a recent trend has been for special interest groups to bring 
challenges to projects based on allegations that, while not located on 
Federal property, the projects have the potential to affect 
environmental or cultural values on Federal property. Such is the case 
with the ongoing challenge to development in northwestern New Mexico, 
where special interest groups have requested a moratorium on drilling 
permits in an area well beyond the boundaries of Chaco Canyon National 
Park. Challenges to pipeline and infrastructure projects across the 
country are likewise based on a similar theory that, while the pipeline 
may not traverse Federal property, the project may have collateral 
consequences for Federal or tribal assets. This incorporation of 
artificial boundaries and reliance on a liberal interpretation of 
``impacts'' allows special interest groups to justify challenges to 
projects anywhere in the country, notwithstanding that many of the 
challenges are premised on questionable legal arguments.
A. Interior Routinely Fails to Meet Statutorily Imposed Deadlines
    The Property Clause of the United States Constitution affords 
Congress ``Power to dispose of and make all needful Rules and 
Regulations respecting the Territory or other Property belonging to the 
United States.'' \5\ It is undisputed that the Property Clause grants 
Congress broad, if not plenary, authority to regulate the manner in 
which Federal property is managed and developed. Like all executive 
branch components, Interior and its agencies possesses only the power 
that Congress has delegated and must fulfill their land management 
duties in the manner Congress has prescribed. Yet Interior routinely 
fails to meet some of its most essential statutorily imposed 
obligations.
---------------------------------------------------------------------------
    \5\ U.S. Const. art. IV, Sec. 3, cl. 2.

    The first step in the development of onshore Federal oil and gas 
resources is land use planning. During this phase, BLM prepares 
resource management plans to determine which lands should be open to 
oil and gas leasing and to prescribe necessary lease stipulations to 
protect various resources in the event of future leasing. Once land use 
planning is completed, parcels in areas identified as open for oil and 
gas leasing in a resource management plan may be nominated for leasing. 
Anyone can nominate lands by sending a written expression of interest 
to the BLM State Office with jurisdiction over the parcel.\6\ BLM 
reviews each nomination to ensure that the parcels are, in fact, 
available under the resource management plan and that ``environmental 
concerns'' are addressed before a nominated parcel is offered for 
sale.\7\ Dozens, if not hundreds, of nominations are pending at any 
given time in each BLM State Office.
---------------------------------------------------------------------------
    \6\ See Bureau of Land Mgmt., Guidelines for Submitting an 
Expression of Interest (EOI)     (``EOI Guidelines''):   https: / / 
www.blm.gov / nm / st / en / prog / energy / oil_and_gas/
guidelines_for_ submitting.html.
    \7\ See id.

    The Mineral Leasing Act imposes a discrete, ministerial obligation 
with which the Secretary ``shall'' abide: ``Lease sales shall be held 
for each state where eligible lands are available at least quarterly 
and more frequently if the Secretary of the Interior determines such 
sales are necessary.'' \8\ Consistent with that obligation, BLM's 
regulations require that ``each proper BLM Sate [sic] office shall hold 
sales at least quarterly if lands are available for competitive 
leasing.'' \9\ BLM's regulations also articulate specific categories of 
``Lands available for competitive leasing.'' \10\ These categories 
include, but are not limited to, ``Lands included in any expression of 
interest.'' \11\ The Mineral Leasing Act's implementing regulations 
specify that ``all lands available for leasing shall be offered for 
competitive leasing.'' \12\
---------------------------------------------------------------------------
    \8\ 30 U.S.C. Sec. 226(b)(1)(A).
    \9\ 43 C.F.R. Sec. 3120.1-2.
    \10\ 43 C.F.R. Sec. 3120.1-1.
    \11\ 43 C.F.R. Sec. 3120.1-1(e).
    \12\ 43 C.F.R. Sec. 3120.1-1.

    BLM regularly fails to comply with the obligation to conduct 
quarterly lease sales in each of the states where eligible lands are 
available. Over the last 2 years, none of the major oil and gas 
producing states have conducted quarterly lease sales in each state 
under the Office's jurisdiction: the New Mexico State Office conducted 
two sales in 2015 and two sales in 2016; the Montana/Dakotas State 
Office allowed more than 6 months to pass in between sales of leases in 
North Dakota and Montana; the Wyoming State Office conducted only three 
lease sales in 2016; the Utah State Office conducted two sales in 2015 
and two sales in 2016; and the Colorado State Office conducted three 
sales in 2015 and two sales in 2016.\13\ Not surprising, many of the 
cancellations and deferrals are in response to suits and legal 
challenges that special interest groups brought in opposition to fossil 
fuel leasing on Federal lands.\14\
---------------------------------------------------------------------------
    \13\ See Bureau of Land Mgmt., Reg'l Oil & Gas Lease Sales: https:/
/www.blm.gov/programs/energy-and-minerals/oil-and-gas/leasing.
    \14\ W. Energy Alliance v. Jewell, No. 1:16-CV-912-LF-KBM (D.N.M.), 
Conservation Groups' Mot. to Intervene at 16 (Oct. 19, 2016) 
(explaining that the New Mexico State Office canceled a January 2015 
lease sale in response to an administrative appeal that special 
interest groups filed).
---------------------------------------------------------------------------
    Once a sale is conducted, a second set of deadlines is triggered. 
The Mineral Leasing Act provides that ``[l]eases shall be issued within 
60 days following payment by the successful bidder.'' \15\ Federal 
courts have interpreted this provision to mean that ``energy companies 
are entitled to a final decision on whether the lands are or are not to 
be leased within 60 days of the dates the leases were paid for by the 
top qualified competitive bidders under the Mineral Leasing Act.'' \16\ 
Like the leasing obligation, BLM routinely fails to meet this 
obligation to timely issue leases that companies have won at auction 
and paid for. In almost every circumstance, this failure is the result 
of BLM's inability to resolve administrative protests that special 
interest groups file in opposition to virtually every parcel that is 
offered for lease.\17\
---------------------------------------------------------------------------
    \15\ 30 U.S.C. Sec. 226(b)(1)(A).
    \16\ W. Energy Alliance v. Salazar, No. 10-CV-0226, 2011 WL 
3737520, at *7 (D. Wyo. 2011).
    \17\ Id. at *2 (``Although BLM strives to review and resolve 
protests in a timely manner, the number, timing and complexity of 
protests typically cause BLM to fail to issue the protested leases 
within the 60-day window specified in the MLA.'').
---------------------------------------------------------------------------
    And even when leases are issued, BLM consistently fails to meet its 
obligations to timely process operational permits. The Mineral Leasing 
Act requires that, no later than 10 days after the date on which BLM 
receives an APD, BLM shall: (i) notify the applicant that the 
application is complete; or (ii) notify the applicant that information 
is missing and specify any information that is required to be submitted 
for the application to be complete.\18\ BLM almost never meets this 
deadline and, indeed, rarely if ever prepares and transmits any formal 
notice that an application is complete.
---------------------------------------------------------------------------
    \18\ See 30 U.S.C. Sec. 226(p)(1)(A)-(B).
---------------------------------------------------------------------------
    Then, not later than 30 days after the applicant for a permit has 
submitted a complete application, BLM must issue the permit, if the 
requirements under the National Environmental Policy Act and other 
applicable law have been completed.\19\ As with the deadline to issue 
leases, Federal courts have held that processing permits consistent 
with this timeline is statutorily required.\20\ But again, BLM almost 
never meets this controlling 30-day deadline. To the contrary, the 
former BLM Director has testified that, even after improvements in 
BLM's efficiency, the average processing time for a drilling permit on 
Federal lands is approximately 200 days.\21\ Our clients report that 
BLM field offices frequently identify obligations associated with 
responding to lawsuits as a significant drain on agency resources that 
prevents the field offices from processing permits more efficiently.
---------------------------------------------------------------------------
    \19\ See 30 U.S.C. Sec. 226(p)(2)(A).
    \20\ See EnerVest, Ltd. v. Jewell, No. 2:16-cv-01256-DN, 2016 WL 
7496116 (D. Utah Dec. 30, 2016).
    \21\ Breaking the Logjam at BLM: Hearing on S. 279 and S. 2440 
Before the S. Comm. on Energy & Natural Resources, 113th Cong. 491 at 
20 (July 29, 2014) (testimony of Neil Kornze) (explaining that since 
2011, average processing times have ranged between 196 and 300 days).
---------------------------------------------------------------------------
B. Special Interest Groups' Litigation Advantage
    Special interest groups have acknowledged expressly that litigation 
is an essential tool in their politicized efforts to oppose the Trump 
administration's economic and energy agenda. And it is no secret that 
lawsuits are piling up. Dozens of suits have been filed challenging 
numerous aspects of the President's Executive Orders, rulemaking 
activities, project approvals, and other manifestations of executive 
policy. Donations to special interest groups have grown exponentially 
since the November 2016 Presidential election and numerous groups have 
promised to fight each of the Trump administration's initiatives in the 
courts.\22\
---------------------------------------------------------------------------
    \22\ Ben Wolfgang, Trump helps drive donations to environmental 
groups, Wash. Times (Feb. 9, 2017) (``[V]irtually all prominent 
environmental groups say donations are pouring in at unprecedented 
rates.'').
---------------------------------------------------------------------------
    These lawsuits divert already limited resources away from the core 
functions of the agency. But they also have significant implications 
for energy producers and the communities in which the producers 
operate. Oil and gas producers are unable to rely on statutorily 
prescribed timelines when planning projects and committing investment 
capital. Projects instead are held in limbo for indeterminate amounts 
of time until BLM can commit the necessary personnel and resources 
required to perform essential functions. In the interim, energy 
producers are forced to cut staff, prohibited from realizing returns on 
investment, and have their ability to finance projects restricted.
    And the impact of these delays extends well beyond individual 
companies. Particularly for the western public lands states, the stakes 
of Federal oil and gas activity are high. A state receives 50 percent 
of all monies received in the form of sales, bonuses, and royalties 
(including interest charges) derived from oil and gas production on 
Federal lands within a state's borders.\23\ Litigation that frustrates 
or delays development and incentivizes operators to move development 
activity off of Federal lands and on to private lands actively harms 
states and taxpayers.\24\
---------------------------------------------------------------------------
    \23\ 30 U.S.C. Sec. 191(a).
    \24\ The sums involved are significant. In Fiscal Year 2014, for 
example, Federal oil and gas royalties totaled almost $3.1 billion. See 
80 Fed. Reg. 22,148, 22,150 (Apr. 21, 2015). Of that amount, $112.6 
million was distributed to Colorado; $16.2 million to Montana; $546.4 
million to New Mexico; $191.5 million to Utah; and $542.7 to Wyoming. 
See Center for Western Priorities, A Fair Share: The Case for Updating 
Oil and Gas Royalty Rates on Our Public Lands at 5 (June 18, 2015).
---------------------------------------------------------------------------
    The impacts of litigation on private companies and local 
communities is especially pronounced because the special interest 
groups that frequently sue to block development projects have two 
important inherent advantages. The first and most important advantage 
is a virtually unlimited access to litigation funding. Contrary to 
common perception, small family companies--not vertically integrated 
international conglomerates--are responsible for the overwhelming 
majority of domestic oil and gas production. Independent producers 
develop 90 percent of the wells in the United States, producing 54 
percent of the Nation's oil and 85 percent of the Nation's natural 
gas.\25\ The median size of these companies is 12 people.\26\ These 
small companies cannot realistically compete in high stakes litigation 
with well-heeled advocacy groups that: (i) can tap into funding across 
the entire country; (ii) use litigation itself as a fundraising tool; 
(iii) do not depend on the ebbs and flows of global commodity prices; 
and (iv) take advantage of fee shifting provisions in environmental 
statutes that frequently result in taxpayers reimbursing the advocacy 
groups for their legal fees.
---------------------------------------------------------------------------
    \25\ See Indep. Petroleum Ass'n of Am., Who Are America's 
Independent Producers?, available at: http://www.ipaa.org/independent-
producers/.
    \26\ See id.
---------------------------------------------------------------------------
    The special interest groups' second advantage is that their 
relationship with government agencies is much less transactional than 
the relationship between energy producers and the regulators that 
oversee operations. When taking a position in a suit concerning a 
project on public lands, private companies must consider not only the 
project that is the subject to the challenge, but the company's ongoing 
working relationship with the agency that the company will undoubtedly 
need to work with again on other projects in the future. Unlike special 
interest groups that sue whenever dissatisfied with any agency 
decision, operators frequently choose not to challenge adverse 
decisions on individual permits and projects in the interest of 
preserving the operator's overall working relationship with local 
regulators.\27\ Large, national political advocacy organizations do not 
have their strategic flexibility confined in this same way. Special 
interest groups based in Washington, DC or San Francisco have much less 
need to maintain a working relationship with local field offices in 
Price, Utah or Carlsbad, New Mexico than do the small companies that 
work daily with the agencies' field office personnel.
---------------------------------------------------------------------------
    \27\ The need to protect a company's relationship with regulators 
is why, when energy companies choose to initiate their own lawsuits, 
they frequently prefer to litigate through trade associations. But 
while the trade association vehicle may be useful, it still requires 
consensus among members and deprives any individual company of total 
control over litigation that may affect the company's operations.
---------------------------------------------------------------------------
                             iii. summation
    History demonstrates that constant litigation is a significant 
contributor to the Interior's consistent failure to meet statutorily 
imposed obligations attendant to Interior's management of the public 
lands. Now politically motivated special interest groups have stated 
expressly that the groups intend to increase the amount of litigation 
they initiate specifically to frustrate Interior's ability to execute 
the new Administration's policy choices. Without structural changes, 
this litigation will serve as an obstacle depriving private companies 
and taxpayers of the important benefits of responsible commercial 
development on our Nation's public lands.

                                 ______
                                 

      Questions Submitted for the Record to Mark Barron, Partner, 
                        BakerHostetler Law Firm

                  Questions Submitted by Rep. Grijalva
    Question 1. You testified about delay caused by litigation, but did 
not propose another way to assure that the views of all interested 
citizens are taken into account when the agency considers whether to 
grant a permit or right-of-way. What alternative means to do you 
propose for taking views of all stakeholders into account and assuring 
that Federal agencies meet the important principles in all of our laws?

    Answer. The question appears to be premised on a misrepresentation 
of my testimony. In my opening statement, I emphasized that I do not 
hold the opinion that excessive litigation is the exclusive reason that 
Federal agencies are frequently unable to execute their mission 
consistent with the statutory parameters that define the agencies' 
obligation. Nor have I suggested that challenging government conduct 
through litigation is per se improper.
    What I have emphasized is that there is evidence that certain 
special interest groups use litigation as a tool not to overturn 
illegal agency action, but to advance preferred policies, regardless of 
the merits of the groups' legal actions. The following example is 
illustrative: a Westlaw search for all Federal court decisions in the 
last 3 years in which the Center for Biological Diversity was a party 
returns 117 results. By comparison, the same search for decisions in 
which the Independent Petroleum Association of America was a party 
return two results.
    This data suggests that special interest groups are choosing to sue 
not just when agency action is arbitrary and capricious or contrary to 
law, but whenever the action is inconsistent with the groups' policy 
preferences. Almost without exception, there have been ample 
opportunities for special interest groups to advance their views before 
final agency action--virtually all meaningful environmental review 
requirements involve processes for public notice and comment. The 
administrative process, not the courtroom, is the appropriate forum for 
these groups to advance their policy concerns and objectives.

                  Questions Submitted by Rep. Johnson
    Question 1. Do unsuccessful legal or administrative challenges 
against an agency, such as those involving the leasing and permitting 
process you discussed, or suits that are dismissed still affect the 
agency and require time and resources to address?

    Answer. There is no direct relationship between the merits of a 
legal challenge and the time and resources necessary to defend against 
that challenge. Every case that is properly filed requires a response 
under the applicable administrative or court rules. So, even when a 
legal challenge is ultimately unsuccessful, it still requires the 
agency use resources to review the complaint, gather facts to dispute 
or refute the allegations made in the complaint, and take action to 
defend the agency as may be appropriate based on whether an 
administrative body or court will adjudicate the dispute.
    Even simple and frivolous challenges impact agency resources. Based 
on my experience representing Federal agencies while a Trial Attorney 
at the Department of Justice, I am familiar with the procedures that 
Federal land management agencies undertake when served with a legal 
challenge. At a minimum, that process typically involves: (i) 
correspondence and/or in person meetings with agency counsel and, in 
lawsuits filed in Federal court, with DOJ counsel; (ii) factual 
investigation into the allegations presented in the challenge, 
including, but not limited to, interviews with involved personnel and 
collection of relevant documentary materials; (iii) review of existing 
and ongoing programs or actions to ensure that the agency does not have 
additional legal exposure; and (iv) review of legal filings that 
counsel draft to ensure technical accuracy and completeness.
    Because Federal agencies are at all times accountable to Congress 
and the public, agencies face the additional complexity of requiring 
documentation to support the litigation choices that the agency makes. 
Unlike private litigants, the strategic rationale for an agency's 
litigation choices must be documented in the filings the agency submits 
to the adjudicator or--particularly in cases that are resolved through 
settlement--in internal memoranda that support the agency's choices. 
The obligation to document the rationale for its litigation choices is 
not conditional on the strength or validity of the legal challenges to 
which an agency must respond.

                                 ______
                                 

    Mr. Johnson. Thank you very much.
    And the Chair now recognizes Ms. Schiffer for her 
testimony.

 STATEMENT OF LOIS SCHIFFER, FORMER GENERAL COUNSEL, NATIONAL 
     OCEANIC AND ATMOSPHERIC ADMINISTRATION, WASHINGTON, DC

    Ms. Schiffer. Chairman Labrador, Ranking Member Grijalva, 
and members of the Subcommittee and the Committee, thank you 
for the opportunity to testify today about settlements in 
Federal agency litigation, with particular attention to the 
Department of the Interior.
    I speak today on my own behalf, based on years of 
experience as a Federal Government lawyer over the course of 
almost 40 years. I had two stints at the U.S. Department of 
Justice, from 1978 to 1984, 7 years as Assistant Attorney 
General in the Environment Division, and 7 years as General 
Counsel at NOAA, ending last January. So, I have had 
significant experience handling, supervising, and being a 
client for litigation and settlements on behalf of the United 
States and its Federal agencies.
    The gist of my testimony is that settlements serve 
important public interests when used appropriately. I will 
summarize five points briefly.
    First, lawsuits are a toolkit that our constitutionally 
established, three-branch system of government makes available 
through the Constitution and Federal statutes to help assure 
that agencies comply with the laws that Congress passes. It 
provides an orderly means of dispute resolution among the 
government and others with a wide range of interests. It is 
part of our democracy.
    Settlement is one tool in this toolkit. Citizens, states, 
and organizations bring lawsuits against Federal agencies to 
challenge agency action or failure to act to carry out 
requirements of specific statutes or regulations.
    A plaintiff has a legal burden in bringing a lawsuit 
against the Interior Department. He or she must establish 
standing, show injury, that the agency action or failure caused 
the injury, and that the court may redress the injury. They 
must have a claim under specific provisions of a Federal 
statute. In effect, those bringing lawsuits are seeking to 
assure that the agency carries out what Congress and the 
Constitution require.
    Moreover, in filing a lawsuit in Federal court, the lawyer 
must, under Rule 11 of the Federal Rules of Civil Procedure, 
warrant, subject to sanction, that claims, defenses, and other 
legal contentions are non-frivolous. So, before there is a 
possibility of settlement, there has to be a notice or a filing 
of a non-frivolous lawsuit against the agency meeting key legal 
requirements.
    Second, settlement may be useful to litigation. Settlement 
may give better results than either a win or a loss by a court 
order. An assessment of possible settlement will take into 
account the costs, work involved, delay, and uncertainty of 
preparing the case and having the court decide.
    The advantages of settlement are often money and time 
savings, pragmatism, certainty, and control. In cases seeking 
money, settlement may protect public funds by leading to more 
reasonable results. Adjustments can be made in settlement 
amounts that are not available in litigation. Money cases are 
more likely to require trials, and settlements may avoid the 
expense and time that trials take.
    Third, agency requirements and procedures mean that a 
lawyer for the Federal Government cannot ``give away the 
store.'' Settlements require significant internal review at 
Interior and Justice, so the public interest is taken into 
account. By regulation and policy, settlements require approval 
of persons with appropriate authority at both Interior and 
Justice. Monetary settlements are reviewed carefully with an 
eye to sensible limit on costs to the public. Our attorneys are 
mindful that claims on the Federal Judgment Fund should be made 
wisely.
    Fourth, money claims for attorney's fees are strictly 
regulated by specific provisions in the governing statutes, 
including the Equal Access to Justice Act. Indeed, Congress 
enacted EAJA, which requires that attorney's fees be paid from 
the agency budget, rather than the Judgment Fund, to encourage 
lawful agency conduct and deter agency decisions that skirt the 
law.
    Attorney's fees claims are evaluated carefully before 
payment is made, and payment of EAJA fees is a sobering message 
for agency officials. Settlement of attorney's fees claims 
generally limits the amounts paid by the Federal Government, 
including avoiding fees on fees.
    Fifth, settlements are public. People on all sides of 
issues have raised concerns over the years about secret 
settlements or sue-and-settle--and I mean on all sides. While 
settlement discussions of necessity are confidential, 
settlements themselves are quite public. I cannot recall a 
settlement I worked on for a Federal agency, with the exception 
of personnel actions, that did not have a public document as 
the outcome.
    In sum, the practical benefits of settling cases are well 
recognized by the Federal courts, virtually all of which have 
put in place alternative dispute resolution programs, 
procedures, and requirements to encourage settlements.
    I am finishing.
    The practical benefits are also well recognized by 
litigants against the government of every interest and by 
Federal agencies. If a more manageable result can be achieved 
with less time for briefing, assembling a record, working with 
witnesses, trying cases, that serves everyone's interest.
    Thank you for the opportunity to testify about this 
important subject.
    [The prepared statement of Ms. Schiffer follows:]
  Prepared Statement of Lois Schiffer, Retired General Counsel of the 
            National Oceanic and Atmospheric Administration
    Chairman Labrador, Ranking Member McEachin, and members of the 
Subcommittee, thank you for the opportunity to testify today about 
settlements in Federal agency litigation, with particular attention to 
the Department of the Interior.
    With intermittent Federal agency service of 25 years through 
several positions at the U.S. Department of Justice, the National 
Oceanic and Atmospheric Administration, and the National Capital 
Planning Commission, and as an adjunct professor of environmental law 
at Georgetown University Law Center for 30 years, I have had 
significant experience handling litigation and reaching and approving 
settlements of Federal agency cases. I began work at the U.S. 
Department of Justice in 1978 as Chief of the General Litigation 
Section (now the Natural Resources Section) in the Land and Natural 
Resources Division, with responsibility for public land and water 
cases, surface mining, some cases related to Indians, and litigation 
generally under numerous Federal statutes. In 1981, I became a Senior 
Litigation Counsel in the Lands Division, a position I held until 1984. 
I returned to the U.S. Department of Justice Department in 1993, first 
as Deputy Assistant Attorney General, then as Acting Assistant Attorney 
General, and from 1994 through January 2001, as Assistant Attorney 
General for the (renamed) Environment and Natural Resources Division. I 
have also served at General Counsel at the National Capital Planning 
Commission (2005-2010) and at NOAA (2010 through January 2017). I have 
worked in private practice at law firms and as a lawyer at non-profit 
organizations as well. I am also a trained mediator with the Federal 
courts in the District of Columbia, and established a mediation program 
in the Environment Division in the 1990s. In these roles I have 
litigated and supervised thousands of cases, and have over many years 
been involved in settlements large and small. My remarks today are 
based on my own experience and are on my own behalf; I am not speaking 
for any Federal agency or private group.
    Today I will describe how several different types of lawsuits 
against the Department of the Interior are handled--cases where the 
plaintiff seeks injunctive relief, either against an agency rule or an 
individual action such as issuance or denial of a lease or permit; or 
seeks to compel the agency to comply with a mandatory duty under a 
statute; and cases where the plaintiff seeks monetary relief.
    Overall, litigation is a means that our constitutionally 
established three-branch system of government makes available through 
the U.S. Constitution and Federal statutes to help assure that agencies 
comply with congressional statutes, agency regulations, the U.S. 
Constitution, and other laws. Courts decide disputes among parties with 
differing interests. It is an orderly and effective means of dispute 
resolution among the government and other parties, including state and 
local governments, citizens, and companies and organizations supporting 
a wide range of interests. Settlement is one tool in this toolkit, and 
certainly a tool used--outside of government cases--by businesses as 
well as governments. Indeed many approaches to alternative dispute 
resolution are designed to identify common interests of disputing 
parties in lawsuits so that they can achieve a settlement. Those who 
seek to have the government run more like a business must be aware that 
full use of settlement authority in appropriate circumstances is one 
way to do that.

    A word of background about lawsuits against the Federal Government: 
they are brought to challenge agency action or failure to act under 
specific statutes or regulations. They reflect the fact that in its 
actions under Federal laws agencies are taking into account a broad 
range of legal requirements and public interests, often expressed 
through public comment or communicated to the agency through other 
means. Under Federal law, the party bringing the lawsuit must establish 
standing--showing injury in fact, that the action or failure to act 
caused the injury, and that it may be redressed by the court. If the 
defendant does not object to an assertion that a plaintiff has 
standing, the Court on its own may determine that the plaintiff has not 
met this burden. In addition, the party suing must demonstrate that the 
case falls within the zone of interests protected by the statute or law 
at issue; that a statute provides a ``cause of action,'' and that the 
agency either acted under the statute or regulation in an arbitrary and 
capricious manner or otherwise contrary to law, or that it failed to 
perform a mandatory duty. In effect, those bringing lawsuits are 
seeking to hold the agency to the requirements that Congress and the 
U.S. Constitution establish for agency action. Lawsuits are brought 
either under the Administrative Procedure Act, or under specific 
provisions of the substantive law.
    Moreover, in filing a lawsuit in Federal court, where most actions 
against Federal agencies are brought, the lawyer must meet the 
requirements of Rule 11 of the Federal Rules of Civil Procedure, by 
which s/he must warrant, inter alia, that ``the claims, defenses, and 
other legal contentions are warranted by existing law, or by a 
nonfrivolous argument for extending, modifying, or reversing existing 
law or for establishing new law''.\1\ So before there is a possibility 
of settlement, there has to be a notice of or a filing of a non-
frivolous lawsuit against the agency based on a statute, regulation, or 
the Constitution.
---------------------------------------------------------------------------
    \1\ Rule 11(b) of the Federal Rules of Civil Procedure provides:

    ``(b) Representations to the Court. By presenting to the court a 
pleading, written motion, or other paper--whether by signing, filing, 
submitting, or later advocating it--an attorney or unrepresented party 
certifies that to the best of the person's knowledge, information, and 
belief, formed after an inquiry reasonable under the circumstances:

      (1) it is not being presented for any improper purpose, such as 
to harass, cause unnecessary delay, or needlessly increase the cost of 
litigation;

      (2) the claims, defenses, and other legal contentions are 
warranted by existing law or by a nonfrivolous argument for extending, 
modifying, or reversing existing law or for establishing new law;

      (3) the factual contentions have evidentiary support or, if 
specifically so identified, will likely have evidentiary support after 
a reasonable opportunity for further investigation or discovery; and

      (4) the denials of factual contentions are warranted on the 
evidence or, if specifically so identified, are reasonably based on 
belief or a lack of information.''

    Litigation or settlement of cases seeking injunctive relief. Once a 
suit is filed, both the party bringing the case and the government 
agency, represented in Court in most instances by the U.S. Department 
of Justice, assess the nature and the merits of their case. Settlement 
is often considered as a possibility. Without invading any client 
confidences, I may say that it is useful for each party to assess what 
happens if s/he wins, what happens if s/he loses and what happens if s/
he settles.
    It is useful to make this assessment against the costs, delay, and 
uncertainty of the court deciding, either by summary judgment on a 
record and the pleadings, or after trial (depending on the type of 
case). At a minimum, the agency will be required to assemble an 
administrative record, and to work with the Justice Department on 
writing briefs and often, presenting argument to a judge. In cases 
seeking injunctive relief, the advantages of settlement are often time-
savings, pragmatism, and control. As a specific example, under express 
provisions of the Endangered Species Act, the agency must take certain 
actions within specified time frames (e.g. within 12 months of 
receiving a petition to list or de-list a species that the agency has 
found has sufficient information that action may be warranted). These 
schedules do not dictate particular outcomes, but do require action. If 
the agency misses the time frame, and a petitioner sues to enforce the 
time frame, the court may hold the agency to short and firm dates that 
the agency does not have resources to meet. That represents a loss for 
the agency and for the petitioner--seeking either listing or de-
listing--because a court victory may not get results. Alternatively a 
settlement for a schedule taking into account both the petitioner's 
interest and the agency's resources, may result in more practical dates 
without the need for full briefing to the Court.
    The practical benefits of settling cases is well-recognized by the 
Federal courts, virtually all of which have put in place alternative 
dispute resolution programs, procedures and requirements to encourage 
settlements.
    The practical benefits are also well recognized by litigants 
against the government of every interest, and by Federal agencies. If a 
more manageable result can be achieved with less time for briefing and 
assembling a record, that serves everyone's interest.
    For settlements seeking injunctive relief--for example, the agency 
failed to meet a mandatory duty, the regulation should be set aside, 
the lease should be issued rather than denied based on the record 
before the agency--the settlement will require approval of both the 
Department of the Interior by a person with appropriate authority, and 
by the Department of Justice by a person of appropriate authority. In 
my experience, at the Department of Justice, the approval of a Section 
Chief or Assistant Chief, and possibly an even higher official, will be 
required for a significant non-monetary settlement. See generally 28 
C.F.R. 0.160, the Justice Department regulation that specifies what 
settlements must be elevated beyond the Assistant Attorney General. 
Within each Division at Justice, provisions are set forth as to what 
levels of approval are required for settlement.
    Settlements may be reflected in Consent Decrees--an order approved 
by the Court, or by settlement agreement--in effect contracts between 
the parties setting forth what each party will do. Another benefit of 
settlements, rather than litigated judgments,, is that the option of a 
contract-like settlement agreement, rather than a court order, is 
available In fact, the Federal Government usually settles cases against 
it by settlement agreement rather than consent decree, so that any 
failure to comply is addressed in the first instance by further 
proceedings before the court as a failure to meet a contract term 
rather than as a contempt proceeding.
    Under several statutes, including the Endangered Species Act and 
some of the pollution protection statutes like the Clean Air Act and 
Clean Water Act, Congress may be seen to contemplate settlements--a 
party may be required to give notice (for example, of 60 days) before a 
suit may be filed. The intention of such notice periods is to permit 
the agency to correct the problem or resolve the issue before a lawsuit 
is filed. A settlement agreement is one means for such resolution.

    Suits against the Federal Government for money. In a suit against a 
Federal agency or the United States for a monetary claim, once the 
claim is made (for example a tort claim) or the suit is filed (for 
example, a takings claim), a similar assessment by each party of 
strengths and weaknesses of its claims and arguments is a useful 
internal process. Claims for money occur under specific statutes where 
Congress has waived the sovereign immunity of the United States. Claims 
against the United States, such a takings claims, may directly relate 
to actions of a particular agency, including the Department of the 
Interior. Claims for money are more likely to be addressed in court 
through an evidentiary trial, rather than on an administrative record 
through summary judgment. That makes the cost and time of going to 
trial an additional factor. It is also useful to note that the Justice 
Department, which generally handles litigation of monetary claims, is 
governed by Justice Department regulations that require the approval of 
the Associate Attorney General or Deputy Attorney General for payments 
of claims against the United States where the payment is in excess of 
$4 million. Other factors also require approval above the Assistant 
Attorney General level. See generally 28 C.F.R. 0.160 (the Justice 
Department regulation on settlement authority).
    In my experience, in the Environment and Natural Resources Division 
at Justice, monetary settlements are reviewed carefully, with an eye to 
limiting costs to the public. Attorneys are mindful that they have 
responsibility to see that claims on the Federal Judgment Fund are made 
wisely.
    Money claims for attorneys' fees are strictly regulated by the 
governing statutes, including the Equal Access to Justice Act and 
attorneys' fees provisions in other statutes. These statutes, which are 
waivers of sovereign immunity, have specific standards for payment. 
Indeed, Congress enacted the Equal Access to Justice Act, which 
requires that attorneys' fees be paid from the agency budget rather 
than the Judgment Fund, to encourage lawful agency conduct and deter 
agency decisions that skirted the law. From my experience at both NOAA 
and the Justice Department I note that claims for attorneys' fees under 
EAJA and other statutes are evaluated carefully before payment is made. 
Settlement generally has the effect of limiting the amounts paid by the 
Federal Government, in part because Courts may be less flexible, and in 
part because litigation over the fees generates ``fees on fees''--fees 
go the plaintiff to litigate the claim if the government does not 
prevail, or does not (under EAJA) have a substantial basis for its 
position.

    Concerns that settlements aren't transparent. Some have raised 
concerns about ``secret settlements,'' and I have heard these concerns 
about settlements from a full range of parties. A few points: while 
settlement discussions of necessity are confidential to get results--a 
party cannot easily take a position in court and publicly undercut it 
in a public settlement discussion, but can in a private discussion--the 
settlements themselves are quite public--I cannot recall being involved 
in a settlement on behalf of a Federal agency (with the exception of 
personnel actions, where Privacy Act concerns may pertain) that did not 
have a public document as the outcome.
    In conclusion, Congress and the Constitution provide citizens and 
organizations with the right to bring lawsuits against Federal agencies 
and the United States as one means to assure that the agencies are 
meeting the requirements of the laws. Those seeking to sue must meet a 
set of requirements including establishing standing and making non-
frivolous claims. Once notice is given or a suit is filed, evaluating 
whether a consensual resolution through settlement, rather than 
litigation and a court order, is an important and useful tool for both 
plaintiffs and the government in some cases. Many requirements within 
the government help assure that the tool is used appropriately.
    Thank you for the opportunity to testify about this important 
subject.

                                 ______
                                 

 Questions Submitted for the Record by Rep. Grijalva to Lois Schiffer, 
Former General Counsel, National Oceanic and Atmospheric Administration
    Question 1. In your experience, do environmental groups bring a 
series of frivolous lawsuits against a particular project in order to 
delay it?

    Answer. In my experience, environmental groups do not bring a 
series of frivolous lawsuits against a particular project in order to 
delay it. First, to file a Federal lawsuit, a lawyer has to sign the 
Complaint in compliance with Rule 11 of the Federal Rules of Civil 
Procedure, which requires under penalty of sanctions that the facts and 
law set forth are not frivolous. Further, there are legal requirements 
that claims related to the same matter have to be brought at the same 
time, not sequentially. Finally, someone challenging an agency action 
has a set of requirements to meet including standing, a cause of action 
under a statute, that the case is ripe. These requirements are not easy 
to meet, and deter frivolous suits.

    Question 2. Are deadline suits caused by excessive litigation or by 
inadequate funding for agencies?

    Answer. A number of statutes require agency action by a deadline 
and those deadlines may be difficult to meet. In the case of the 
Department of the Interior regarding Endangered Species Act deadlines, 
inadequate resources have long been a reason for missing the deadlines. 
As to deadlines in laws enacted by Congress, for example, some of the 
pollution prevention statutes require that EPA issue regulations within 
certain time frames. Another example, the Endangered Species Act 
provides that people may petition the agency for action, and then 
specifies time frames by which the agency must act on those petitions. 
The Freedom of Information Act also has deadlines, and they are 
deadlines that Congress continues to make stricter. If the agency 
misses these legislated deadlines, the person or organization seeking 
action may bring a lawsuit to compel the agency to take the action it 
was supposed to take by the deadline. The legal name for this suing to 
enforce a ``mandatory duty.'' In general, agencies miss these deadlines 
because they do not have adequate resources--staff, technology, and 
money--to take all the actions by deadlines that these statutes 
require. More staffing, better technology, more resources in general 
would help agencies meet the established deadlines.

    Question 3. The Multi District Litigation provided a single 
schedule for the Department of the Interior to handle a large number of 
petitions for listing of species under the Endangered Species Act, 
rather than many spate lawsuits with no coordinate schedule. Was that 
approach helpful or frivolous?

    Answer. While I have not had personal involvement with this ESA 
multi-district litigation, I am sufficiently familiar with it to know 
that it establishes a single, unified and prioritized schedule for the 
Department of the Interior to evaluate a large number of listing 
petitions--petitions for considering whether a species of plants or 
animals should be listed as threatened or endangered--and that approach 
is clearly preferable to a scattershot of responding to petitions 
without adequate resources whenever they come in the door. Department 
officials have testified about the importance of this approach to the 
effective work of the agency. https://www.doi.gov/ocl/hearings/112/
EndangeredSpeciesAct_120611.
    An illustration may be helpful: If a student has 10 homework 
assignments, and teachers kept assigning more, we would all counsel 
that student to make a list and set priorities instead of panicking 
about each new assignment because of the overload. The Multi-District 
approach was a good one to enable the Department of the Interior to 
approach the deadlines set by Congress in a more sensible way with its 
limited resources.

    Question 4. Ms. Lobdell raised questions about small companies that 
are intervenors in a case not being able to take appeals. Could you 
address that concern?

    Answer. As I understand it, Ms. Lobdell's concern arises under the 
following circumstance: Her clients think the government has acted 
properly, and that the plaintiffs who challenge that action in a 
lawsuit are wrong; her clients intervene in the case on the side of the 
government; and the trial court then rules that the government failed 
to handle the matter properly under the law and remands (sends back) 
the case to the agency for further consideration. If the government 
decides it will comply with the trial court's order, and conduct 
further proceedings rather than appealing the ruling, then under the 
current law the Court has ruled that Ms. Lobdell's clients may get 
relief from the agency proceeding and therefore cannot at that time 
appeal. As a matter of the law, there is no ``final order'' from the 
court because the matter is back at the agency for consideration. Ms. 
Lobdell's concern would arise in any case where the government decided 
to comply rather than seek appeal. While the agency could decide to 
appeal rather than comply with the trial court ruling, if the agency 
decides to comply with the trial court ruling, under a principle called 
``the final order doctrine'' that is established by a statute--28 
U.S.C. 1291--there is no final order for the intervenor, because s/he 
can go back to the agency to seek relief. In the cases Ms. Lobdell has 
provided (Pit River Tribe and Alsea), the Ninth Circuit Court of 
Appeals has said that the intervenor has the opportunity to protect its 
interests before the agency in that instance, and can appeal to the 
court after the agency takes further action if the intervenor does not 
get relief from the agency, but cannot appeal until the agency acts. 
That Ninth Circuit principle would apply in any case where these 
circumstances pertain.
    Ms. Lobdell's approach that her clients could appeal even if the 
agency wanted to act further, if put into a statute, would create an 
exception to the well-established and sensible ``final order 
doctrine,'' and would discourage the government from deciding to comply 
with a court order rather than challenge it further. In effect, Ms. 
Lobdell would prefer that the agency not comply with the court order, 
or comply and let her take an appeal in the meantime. Either approach 
would cause additional and possibly unnecessary litigation, and be 
contrary to the sensible usual approach of giving the parties to the 
lawsuit one forum at a time (court or agency) and not two. If the 
agency prefers to comply, long-standing ``final order'' requirements 
set the rules. In effect, the Court is ruling that an agency may choose 
to comply rather than be drawn into an appeal. That is generally a 
sound approach. If Congress were to consider legislating an exception 
to the final order doctrine--an approach that would upset long-standing 
court precedent--then it should create that exception for any 
intervenor, not just small companies.
    Question 5. What are your views about allowing affected companies 
to intervene in lawsuits?

    Answer. Anyone--individuals, companies, non-profit groups, others, 
directly affected by a lawsuit, should be able make their views known 
in compliance with the approaches and procedures in the law, which 
generally work well. There are legal standards about when someone may 
intervene in a suit, either as of right or permissively, set forth in 
the Federal Rules of Civil Procedure; sometimes additional rules are 
set forth in statutes. Courts are familiar with the rules and apply 
them. If someone meets the legal standard to intervene, and the Court 
does not permit it, s/he may appeal the Court's ruling. Courts may also 
allow participation as an amicus instead of as a party to hear views of 
the person or company. Changing the law to provide special rights of 
intervention for small companies when they do not meet the current 
standards--that include an analysis of whether the parties in the case 
already are sufficiently protecting the views of the proposed 
intervenor--would cause unnecessary delay in cases for little benefit.

    Question 6. Does any study analyze the kinds of cases where EAJA is 
used most?

    Answer. A helpful analysis is in a report of the Chairman of the 
Administrative Conference of the United States (2013), which analyzes 
2010 data for the amounts that agencies paid under the Equal Access to 
Justice Act. That report on the tables at pages 8-9 shows that in that 
year the Veterans Administration and the Social Security Administration 
EAJA payments totaled about $38 million, while Department of the 
Interior paid approximately $1.2 million. The report is attached here.

    Question 7. Is alternative dispute resolution (e.g. mediation) 
helpful in resolving the kinds of lawsuits raised in the hearing?

    Answer. Alternative dispute resolution, including mediation and 
other approaches, can definitely help agencies and those who sue them 
reach settlements in the right circumstances. A settlement generally 
gives an agency more control over the outcome and its work going 
forward--with a court decision, the agency may win or lose, and if it 
loses may face orders that are not practical to implement. An outside 
facilitator like a mediator may well help the parties find common 
ground and reach a settlement. Courts are generally enthusiastic about 
alternative dispute resolution and most Federal courts have programs 
for alternative dispute resolution to facilitate settlements.

    Question 8. One witness testified that agencies spend time 
complying with the environmental group request under FOIA instead of 
doing other work. Do you think agencies should be given additional 
staff and resources to comply with FOIA?

    Answer. The Freedom of Information Act is an important law that 
gives the public information about how the government operates. Going 
through the many agency records that FOIA requestors seek takes time 
and resources, including effective electronic resources. Because of 
deadlines that Congress has established in the FOIA statute, responding 
may have priority in an agency. Agencies should certainly be given 
adequate resources--staff, electronics, and other resources, to do 
their jobs effectively, including adequate resources for responding to 
FOIA requests and doing other work at the same time.

    Question 9. Were any points raised in the hearing--about collusion 
or any other topic--to which you would like to respond?

    Answer. I note that it has been my experience in many years of 
working with Federal agency lawyers that in general these public 
servants are able, hardworking, and conscientious. As lawyers they are 
bound by standards of professional conduct administered by state bars. 
In my experience these lawyers do not ``collude'' with lawyers on the 
other side of a case.

    Thank you for the opportunity to answer these questions.

                                 *****

The following document was submitted as an attachment to Ms. Schiffer's 
responses. This document is part of the hearing record and is being 
retained in the Committee's official files:

    --Administrative Conference of the United States, January 9, 2013, 
            Report of the Chairman on Agency and Court Awards in FY 
            2010 Under the Equal Access to Justice Act.

                                 ______
                                 

    Mr. Johnson. Thank you very much.
    And the Chair now recognizes Ms. Lobdell for her testimony.

     STATEMENT OF CAROLINE LOBDELL, EXECUTIVE DIRECTOR AND 
SUPERVISING ATTORNEY, WESTERN RESOURCES LEGAL CENTER, PORTLAND, 
                             OREGON

    Ms. Lobdell. Good morning, Mr. Chairman, Ranking Member, 
and members of the Subcommittee. It is an honor to be here 
today.
    I am Caroline Lobdell, the Executive Director and 
Supervising Attorney for the Western Resources Legal Center. We 
are a non-profit legal education program out of Portland, 
Oregon that provides clinical education to law students who are 
interested in resource use, such as livestock grazing, timber 
harvesting, oil and gas exploration and production, and mining. 
I am here today on my own behalf.
    Today, I will address three topics: concerns over recovery 
of attorney's fees under the Equal Access to Justice Act, 
otherwise known as EAJA; the marginalization of resource users 
as limited interveners that want to help defend the 
Department's resource use decisions in court; and steps that 
the Department of the Interior can take to avoid litigation and 
streamline the challenges to its resource projects, so that 
projects benefiting natural resources and projects benefiting 
our rural communities are not delayed by years by the agency's 
own appeal process.
    EAJA is a taxpayer-funded meal ticket for environmental 
groups to collect attorney's fees at enhanced rates, even if 
the non-profit net assets exceeds the $2 million limit that 
precludes attorney's fees recoveries for individuals. EAJA is 
an incentive to sue the Department of the Interior and other 
agencies, and is a funding source for expansion of the staff 
and offices of groups that want to halt environmentally and 
economically beneficial natural resource projects.
    The taxpayers lose all around. They pay plaintiffs, and 
they lose revenues from the projects that have come to a halt.
    Congress should consider three reforms that will bring some 
sanity to stop the EAJA gravy train for plaintiff groups.
    First, a non-profit should be subject to the same net worth 
limit that precludes recovery for other plaintiffs.
    Second, there should be no enhanced rate for environmental 
litigation. Decades ago, environmental law was considered a 
specialty area with few lawyers practicing in the fields, and 
the courts concluded that enhanced rates were then justified. 
However, today, almost every law school has an environmental 
law clinic. Environmental law simply is no longer a specialty 
justifying enhanced rates.
    And third, a plaintiff should not be considered a 
prevailing party if it only obtains a favorable ruling on a few 
or limited claims.
    State and local governments, potential purchases of timber 
sales, and grazing allotments and existing contract and permit 
holders are allies of the Department of the Interior to defend 
lawsuits filed to halt resource projects. These third parties 
can help demonstrate the economic impacts and the negative 
environmental consequences from halting a resource project.
    Unfortunately, there is no comparable legislation that 
provides a right for these third parties to intervene in a 
lawsuit that seeks to halt a departmental project.
    For example, on the Point Reyes National Seashore north of 
San Francisco, families engaged in ranching and dairy moved to 
intervene in a lawsuit that challenges the Park Service's over-
delayed revision of the seashore's general management plan and 
the authorization of long-term leases for ranches. These multi-
generational ranch and dairy families were land stewards before 
Point Reyes was even created, and they are a significant part 
of the agricultural base of Marin County.
    The Park Service acquired these private lands under threat 
of condemnation, and the court, urged by plaintiffs, limited 
the ranchers and counties' participation. The Park Service has 
capitulated to plaintiffs and provided only short-term leases.
    When the government loses a case, the Ninth Circuit has 
held that interveners have no right to appeal if the government 
does not appeal. So, bad precedent is established by one-sided 
settlements.
    Finally, there are at least two actions the Department can 
implement to avoid litigation and streamline challenges.
    First, the Department needs to build flexibility into the 
resource management plans when the plans are amended and 
revised. Plaintiffs love to plumb the depths of the luminous 
management plans to find inflexible standards and required 
procedures to serve as foundation for lawsuits. Every word 
``shall'' in a management plan lifts a plaintiff's heart, and 
provides another arrow to shoot down a resource project. A plan 
full of discretionary standards defeats an agency's ability to 
engage in adaptive management.
    Second, the Department of the Interior's administrative 
review process is far more extensive than that of the Forest 
Service or USDA. The Forest Service has one objection process. 
In stark contrast, Interior has a three-level review process.
    For example, I represent Caroline and Manuel Manuz from 
Clifton, Arizona, who are seeking to build a solar-powered 
well. There is no reason for three levels of review to make a 
decision to drill a modest well on a grazing allotment in an 
area far from surface water and that will benefit wildlife and 
cattle. This is only one of countless examples where simple 
decisions that benefit all become paralyzed by the litigation 
process.
    Thank you for this opportunity.
    [The prepared statement of Ms. Lobdell follows:]
  Prepared Statement of Caroline Lobdell, Executive Director, Western 
                Resources Legal Center, Portland, Oregon
    Good morning Chairman Labrador, Ranking Member McEachin, and 
members of the Subcommittee. I am Caroline Lobdell the Executive 
Director of the Western Resources Legal Center (WRLC). WRLC is a 
nonprofit organization that provides clinical education at Lewis and 
Clark Law School in Portland, Oregon for those students interested in 
resource use such as livestock grazing, timber harvest, mining, and oil 
and gas exploration and production. My remarks are based on my 
experience as an educator and litigator and do not represent the 
position of the Law School. Today I will address three topics: concerns 
over recovery of attorney's fees under the Equal Access to Justice Act 
(EAJA); the marginalization of resource users as limited intervenors 
that want to help defend the Department's resource use decisions in 
court; and steps that the Department of the Interior can take to avoid 
litigation and streamline the challenges to its resource projects so 
that projects benefiting natural resources and rural communities are 
not delayed for years by its own appeals process.
                  equal access to justice act reforms
    EAJA is a taxpayer funded meal ticket for environmental groups to 
collect attorney's fees at enhanced rates even if the non-profit's net 
assets exceed the $2 million limit that precludes attorney's fees 
recovery for individuals. EAJA is an incentive to sue the Department of 
the Interior and other agencies and is a funding source for expansion 
of the staff and offices of groups that want to halt environmentally 
and economically beneficial natural resource projects. The taxpayers 
lose all around. They pay plaintiffs and they lose revenue from the 
projects that are halted.
    Congress should consider three reforms that will bring some sanity 
to stop the EAJA gravy train for plaintiff groups. First, a nonprofit 
should be subject to the same net worth limit that precludes recovery 
for other plaintiffs. If the nonprofit's net assets exceed $2 million, 
then there should be no recovery of attorney's fees. Second, there 
should be no enhanced rates for environmental litigation. Decades ago 
environmental law was considered a specialty area with few lawyers 
practicing in the field and the courts concluded that enhanced rates 
were justified for environmental plaintiffs. However, today almost 
every law school has an environmental law clinic. A multitude of newly 
minted lawyers challenge BLM, Fish and Wildlife Service, and other 
Department of the Interior actions to get experience straight out of 
law school and hope for a big EAJA payday. Environmental law simply is 
no longer a specialty justifying enhanced rates. We have seen cases 
where law students used on the cases are awarded rates of $150 an hour 
and they are not even admitted to practice law. Third, a plaintiff 
should not be considered a ``prevailing party'' entitled to EAJA fees 
if it only obtains a favorable ruling on a few claims. A plaintiff 
should be required to prevail on all, or at least half, of its claims 
before it can recover under EAJA.
level the litigation playing field for those who support department of 
                         the interior decisions
    State and local governments, potential purchasers of timber sales 
and grazing allotments, and existing contract and permit holders are 
allies of the Department of the Interior to defend lawsuits filed to 
halt resource projects. These third parties can help demonstrate to the 
court the adverse economic impacts and negative environmental 
consequences from halting a resource project. Unfortunately, there is 
no legislation that provides a right for a state or local government, 
contractor, or permit holder to intervene in a lawsuit that seeks to 
halt a Departmental project. For example, on the Point Reyes National 
Seashore north of San Francisco, families engaged in ranching and 
dairying moved to intervene in a lawsuit that challenges the Park 
Service over delayed revision of the Seashore's General Management Plan 
and the authorizations of long-term leases for the ranches. These 
multi-generational ranch and dairy families were land stewards before 
the National Seashore was created. The Park Service acquired these 
private lands under threat of condemnation. Congress recognizes the 
importance of the ranches and provided for continuation of ranching and 
dairying in the pastoral zone of the Seashore. These families have been 
caring for the land and provide locally grown, organic, and grass-fed 
cattle, sheep, and dairy products and are a major part of the 
agricultural base of Marin County. The ranchers and Marin County moved 
to intervene in a lawsuit. The court, at the urging of plaintiffs, 
limited the ranchers' and County's participation to the point where 
they are not considered full parties to the settlement negotiations. 
Secretary Ken Salazar directed that 10-year ranching leases be issued, 
but the Park Service has capitulated to plaintiffs and only provided 1-
year leases. The short-term leases make it hard for the ranchers to 
justify investments in water distribution, pond improvements, and range 
rejuvenation that will benefit wildlife and water quality.
    Finally, when the government loses a case, the Ninth Circuit has 
held that intervenors have no right to appeal if the government does 
not appeal. So, bad legal precedent is established by one-sided 
settlements. Furthermore, when the Department is prevented by the 
Solicitor General from appealing an adverse decision, which an 
intervenor cannot appeal, because of bad Ninth Circuit law.
 actions within the control of the department of the interior to avoid 
            litigation and streamline administrative review
    Finally, there are at least two actions that the Department of the 
Interior can implement to avoid litigation and streamline the 
challenges to resource projects. First, Department of the Interior 
agencies need to build flexibility into their Resource Management Plans 
when the plans are amended and revised. Plaintiffs love to plumb the 
depths of voluminous Management Plans to find inflexible standards and 
required procedures to serve as a foundation for lawsuits to stop 
agency projects. Every use of the word ``shall'' in a management plan 
lifts a plaintiff lawyer's heart and provides another arrow to shoot 
down a resource project. Not surprisingly, courts have held that an 
agency must follow the nondiscretionary mandates in its management 
plan. A plan full of nondiscretionary standards defeats an agency's 
ability to engage in adaptive management during a given year and over 
the life of the plan. For example, a provision in a plan that BLM 
``shall retain 500 pounds of residual dry matter per acre'' after the 
grazing season does not account for the annual variation in weather or 
site conditions that could allow greater forge utilization while 
maintaining the health of the range.
    Second, the Department of the Interior's administrative review 
process is vastly more cumbersome and lengthy than the administrative 
review of the Forest Service and the Department of Agriculture. The 
Forest Service has an objection process that provides one level of 
administrative challenge to a resource project such as a timber sale. 
In stark contrast, the Department of the Interior has a three-level 
review process. A protest before the Bureau of Land Management, then an 
appeal to the Department of the Interior Office of Hearings and Appeals 
administrative law judge, and then another appeal to a three-judge 
panel of the Interior Board of Land Appeals (IBLA). IBLA itself is not 
a creature of statute but is one of two Boards in the Office of 
Hearings and Appeals that the Secretary of the Interior created in 
1970. The Secretary has the power to shape and modify the 
administrative appeals process and define which decisions are subject 
to administrative appeal and whether there is one level of challenge 
instead of three. For example, under the Department of the Interior 
Manual there is no appeal of a biological opinion issued by the Fish 
and Wildlife Service. Certain decisions could have one level of protest 
just like Forest Service decisions. For example, I represent Carolyn 
and Manuel Manuz from Clifton, Arizona, who are seeking to build a 
solar powered well. There is no reason for three levels of review of 
the decision to drill a modest well on the Twin C Grazing Allotment in 
Arizona far from any surface water source, that will benefit wildlife 
and cattle with a new water source, and reduce water withdrawals from a 
well on the Gila River. Decisions to maintain the status quo, such as 
renewal of a grazing permit at the same level of livestock use, are 
another class of decisions that could be subject to only one level of 
administrative challenge.
    Thank you for this opportunity to testify, and I am happy to answer 
any questions.

                                 *****

The following documents were submitted as supplements to Ms. Lobdell's 
testimony. These documents are part of the hearing record and are being 
retained in the Committee's official files:

    --Resource Renewal Institute, et al. v. National Park Service, et 
            al., U.S. District Court, Northern District of California 
            (Oakland Division), Case No.: 4:16-cv-00688-SBA: Doc. 103-
            36 Declaration of Amy Meyer, Doc. 103-37 Declaration of 
            Brigitte Moran, Doc. 103-38 Declaration of Jamison Watts.

    --The Mercury News: Point Reyes: Lawsuit challenges historic 
            ranching operations at iconic park, by Paul Rogers, 
            February 10, 2016.

    --Twin C Grazing Permit Renewal and Goat Camp Well: Figure 3--
            Proposed Goat Camp Well looking south; Figure 4--Proposed 
            Goat Camp Well capped.

                                 ______
                                 

Questions Submitted for the Record by Rep. Johnson to Caroline Lobdell, 
           Executive Director, Western Resources Legal Center
    Question 1. The question period of the hearing generated some 
confusion regarding the Equal Access to Justice Act and the statute's 
limitations on which parties are eligible to be awarded attorney's fees 
in actions against the United States. Can you clarify the limits the 
statute sets on party's eligibility to be awarded attorney's fees and 
whether any organizations are exempt from these limits?

    Answer. The limitations as to the parties that can recover 
attorney's fees under the Equal Access to Justice Act (``EAJA'') are 
clearly defined in the statute under 5 U.S.C. Sec. 504(b)(1)(B). 
Individuals whose net worth does not exceed $2 million and businesses 
whose net worth does not exceed $7 million can pursue attorney's fees 
under EAJA.
    There was some suggestion during the hearing that 501(c)(3) tax-
exempt nonprofit organizations are without exception, and therefore, 
subject to the same net worth limitations. That is, however, in direct 
conflict with the plain language of 5 U.S.C. Sec. 504(b)(1)(B), which 
states in pertinent part:

        except that an organization described in section 501(c)(3) of 
        the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt 
        from taxation under section 501(a) of such Code, or a 
        cooperative association as defined in section 15(a) of the 
        Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party 
        regardless of the net worth of such organization or cooperative 
        association . . . .

    Thus, while there are caps for business and individuals, EAJA 
creates a specific exception for nonprofit organizations and they are 
not subject to any limitations on net worth and can pursue attorney's 
fees no matter how much the organization is worth.

    Question 2. How has the litigation against the National Park 
Service regarding ranching at the Point Reyes National Seashore 
interfered with the Park Service's ability to manage that area 
properly?

    Answer. The litigation on the Point Reyes National Seashore has 
paralyzed and completely halted the Parks Service's completion of a 
National Environmental Policy Act Comprehensive Ranch Management Plan. 
Completion of a Ranch Management Plan was stopped in its tracks when 
the Park Service stipulated with plaintiffs to stay any work on the 
Ranch Management Plan, effectively conceding to a de facto preliminary 
injunction.
    Second, the Park Service, prior to the litigation, had provided 
ranch leases exceeding 1 year. However, after commencement of 
litigation, the Park Service has provided only 1-year lease extensions. 
These year-to-year lease extensions discourage investments in 
improvements to the land and long-term environmentally beneficial 
conservation projects in cooperation with the Natural Resource 
Conservation Service. The Park Service was paralyzed when the 
plaintiffs filed a Motion for Preliminary Injunction. That injunction 
sought a complete halt to the Ranch Management Planning NEPA process 
and the issuance of leases longer than 1 year.
    Ongoing settlement discussions have stayed further action on the 
Motion for Preliminary Injunction. However, by halting the work on the 
Ranch Management Plan and issuing only 1-year short term leases, the 
Park Service capitulated to plaintiffs and basically acceded to their 
demands in the Motion for Preliminary Injunction.
    The Committee should also note that the severe restrictions on 
intervenors' participation in this litigation have been appealed to the 
9th Circuit Court of Appeals. That appeal is also currently stayed 
given ongoing settlement discussions.
    I would be happy to answer any further questions that the Committee 
may have.

                                 ______
                                 

    Mr. Johnson. Thanks so much, Ms. Lobdell. And thanks again 
to all the witnesses for your testimony today.
    I would like to remind the Members that Committee Rule 3(d) 
imposes a 5-minute limit on our questions. To begin 
questioning, I will recognize myself as the Chair for 5 
minutes.
    Mr. Barron, last Thursday, Secretary Zinke testified before 
our Full Committee. At that hearing, we heard some strong 
viewpoints from both sides of the aisle, as well as from the 
Secretary himself, regarding the Department's budgetary 
priorities.
    As you know, payments are made under the Equal Access to 
Justice Act, they come directly from the agency's budget in 
most cases. Given the exorbitant attorney's fees that we have 
heard about that are paid to environmental lawyers under the 
EAJA, sometimes at enhanced rates as high as $750 an hour, in 
what ways does constant litigation further strain the 
Department's budget, and ultimately hinder its ability to 
fulfill its core missions?
    Mr. Barron. Thank you, Mr. Chair.
    Mr. Johnson. Hit your button for me, the talk button, yes.
    Mr. Barron. Thank you, Mr. Chair. I think, in all ways, as 
I mentioned in my opening statement, the Department is 
initially burdened by a lack of resources, so it is already 
starting from behind the eight ball. And then, this constant 
litigation exacerbates that existing problem.
    I think what is notable is that this body has acted in the 
past to try to address some of those concerns, and the 
litigation has continued to undermine those efforts. For 
example, in the last several years, there have been pilot 
projects to fund field offices with particularly large permit 
demands. The cost of a drilling permit on Federal lands has 
been increased over the last several years, and yet those steps 
have not resulted in any benefits in the field. The field 
offices are still under stress.
    As I mentioned in my testimony, we have received anecdotal 
evidence that one of the real troubling issues for some of 
these field offices is responding to FOIA requests from these 
environmental groups, that resources that would be allocated to 
permitting, permit processing, and managing the lands is being 
used to respond to FOIA requests and to support litigation 
efforts.
    Mr. Johnson. That is good. Would you describe this as a 
vicious cycle? Is that a fair characterization of it? And does 
the current system, do you think, incentivize more lawsuits 
being brought against the Department?
    Mr. Barron. What I would say, Mr. Chair, is that when we 
counsel clients who are planning projects on Federal lands, 
that we encourage them to incorporate in their timelines the 
virtual certainty of litigation delaying the project.
    I can use as an example a master development plan that was 
recently approved for a client in the Permian Basin in New 
Mexico. Master development plans are a tool that BLM emphasizes 
as streamlining the permitting and environmental review 
process. Several years of environmental review went into 
approving the master development plan. Within days of the plan 
being approved and posted on the Carlsbad field office's 
website, there was an environmental challenge to a plan that 
was subject to public participation for several years.
    So, in our view, people operating on public lands should 
expect litigation. It is part of operating in that sphere.
    Mr. Johnson. I appreciate that. We know that advocacy 
groups benefit from the receipt of taxpayer dollars through 
government grants. And then, of course, they are also receiving 
uncapped attorney's fees in these lawsuits against the 
government.
    In your testimony, you explain that advocacy groups also 
use litigation as a fundraising tool, which further cements the 
fact that they have a built-in sort of cottage industry, money-
making industry around litigation. Can you elaborate on that 
just a little more?
    Mr. Barron. Sure. I think you will note, if you look at the 
publicly available websites for most of the major environmental 
groups, they issue a press release and a fundraising request 
every time that a lawsuit is filed. And I don't think that it 
is a controversial opinion. I mean it has been prevalent in the 
media that they have acknowledged that they intend to challenge 
every approval, every permit processing, and every 
implementation of environmental policy under the new 
Administration.
    I think that part of that is, as you can also see from 
their public releases and from their websites, that has driven 
fundraising, particularly in the last quarter, but that's a 
consistent pattern that we have seen.
    Mr. Johnson. It says something about their motives, I 
think.
    Mr. Jorjani, there are concerns about frequent repeat 
litigants here. And, as a matter of fact, our Ranking Member, 
Mr. Grijalva, requested a report from the Government 
Accountability Office that was just released this February. The 
report, which addresses so-called deadline suits under the 
Endangered Species Act, found a total of 141 of these suits 
against the Fish and Wildlife Service and National Marine 
Fisheries Service over a 10-year period.
    Most shockingly, the data revealed that just two 
environmental groups alone were responsible for half of those 
suits. It took a GAO study on just these types of suits to 
discover how often these repeat litigants sue.
    It seems that special interest plaintiffs have developed a 
strategy around exploiting the Endangered Species Act's 
vulnerability to litigation, and environmental groups will file 
an overwhelming number of petitions to review a species for 
listing, knowing that Fish and Wildlife and National Marine 
Fisheries cannot possibly complete the finding in time, giving 
them an opportunity to sue the agency when the deadline is 
missed.
    The same report found that Fish and Wildlife prioritizes 
completing actions under Section 4 of ESA mandated by 
settlement agreements resulting from lawsuits.
    So, basically, are Federal agencies tasked with protecting 
our most vulnerable species, or prioritizing which species gain 
protections first because of lawsuits brought on by the same 
environmental groups that claim to want to protect these 
species? This not only devalues the integrity of the ESA, but 
science in general. A more centralized case information system 
might help us better identify these patterns.
    The question is--I am out of time, but would this be 
something you are willing to continue a conversation with the 
Committee on?
    Mr. Jorjani. I am not familiar with that specific report, 
but yes, we welcome the opportunity to continue working with 
this Committee on this very important issue.
    Mr. Johnson. I appreciate that. I am out of time for my 
questions, and I am going to recognize Mr. Clay first for 
questions for 5 minutes.
    Mr. Clay. Thank you, Mr. Chairman, and thank you all for 
coming to the hearing today.
    Ms. Schiffer, Mr. Barron claimed in his testimony that 
special interest groups have virtually unlimited access to 
litigation funding. He says the oil and gas companies are small 
companies that cannot realistically compete in high-stakes 
litigation with well-heeled advocacy groups. But he is a high-
priced lawyer from a major law firm representing their 
interests. In fact, he represented their interests well when he 
killed the fracking rule, which would have protected drinking 
water sources.
    In your experience, did you find that oil companies were 
unable to find enough money to bring cases against Interior or 
anyone else, for that matter?
    Ms. Schiffer. Congressman Clay, thank you for your 
question. In my experience, what I see is the lawsuits that the 
government gets, either when I was at NOAA or when I was at the 
Justice Department. And basically, Congress has appropriately 
recognized that there are many different interests, and the 
Department of the Interior is one of the agencies that really 
has to take into account, under statutes, a very wide range of 
interests.
    And part of how people assert those interests is when it 
thinks the agency has done something wrong or has failed to 
act, it brings a lawsuit. So, in my experience, there are 
lawsuits by oil and gas companies, big and small, by 
environmental groups, and by individual citizens and local 
citizens groups. And the fact that the groups may or may not be 
well funded seems to go across the board of types of interest 
that are expressed.
    I would also note, because there has been some suggestion 
that the Equal Access to Justice Act provides sort of a big 
pocket of money, that the standards for getting attorney's fees 
under the Equal Access to Justice Act are pretty clearly set 
forth in the statute.
    It has one financial standard for an individual, a person 
who has a net worth of less than $2 million, and a separate 
standard for every other kind of group. It makes no distinction 
between non-profits, unincorporated businesses, corporations, 
associations, or units of local government. They are all 
together with $7 million, they have to have less than $7 
million.
    Once they meet that threshold, then the group has to show 
that they prevailed in the lawsuit. And that is a standard that 
courts have interpreted in rather complicated ways to determine 
what prevailing in a lawsuit is. But a version, they have to 
win it.
    And then, when they win it, the government can show that 
its position was substantially justified. And if the government 
took a substantially justified--that is, a reasonable--
position, then the people do not get attorney's fees. And even 
then, there is an hourly rate, which is relatively low, in the 
statute, and with limited exceptions for going above it. So, it 
is a heavy burden, and it happens only after the lawsuit is 
over.
    As a practical matter--I am not in any groups, and I don't 
know their motives, but it would appear that that would not be 
the basis for suing.
    And I will say, if you look on the websites of some of 
these groups, they have pretty broad purposes and policies 
that, assuring statutes are implemented, do not relate to 
having funding.
    Mr. Clay. Sure. Thank you for that response. Ms. Schiffer, 
Mr. Barron claims that oil and gas operators frequently choose 
not to challenge adverse decisions on individual permits and 
projects in the interest of preserving the operator's overall 
working relationship with local regulators.
    In your experience, when oil companies sue BLM, do the 
regulators at the local level care so much about the cases that 
it affects their relationship with the oil companies? If so, is 
that a deterrent to filing lawsuits for oil companies?
    Ms. Schiffer. Well, I certainly don't know the specific 
facts of Mr. Barron's clients. I do know that everybody worries 
about how they are going to get along with the local 
regulators. That includes people who work on environmental 
protection, as well as oil and gas companies, and everybody 
else who deals with the regulators, and that interest is 
widespread.
    It is a little bit of--you can disagree without being 
disagreeable. And I will say that I have spent certain amounts 
of time explaining to really terrific Federal employees, people 
who work for all of us, as employees of the Federal Government, 
that the fact that somebody sues you does not mean you are a 
bad person or that you have done something wrong.
    Mr. Clay. Sure.
    Ms. Schiffer. It means that they have a disagreement with 
the agency.
    So, I cannot address Mr. Barron's clients. I can say that 
there is an interest in working at the local level in a 
cooperative way, but there is also the capacity--as Congress 
has recognized and the courts have recognized--to go ahead and 
bring lawsuits when it is necessary, when people believe it is 
necessary to assure that the agency is carrying out what 
Congress specified.
    Mr. Clay. Yes, thank you for your response. My time is up, 
but I am sure we have to protect those small little oil and gas 
companies from litigation. I yield back.
    Mr. Johnson. Thank you. The Chair now recognizes Mrs. 
Radewagen for 5 minutes.
    Mrs. Radewagen. [Speaking native language]. Good morning. 
Thank you, Chairman Johnson and Ranking Member Grijalva, for 
holding this hearing. And thank you all for testifying today. I 
have a question here for Mr. Barron.
    In regards to an earlier question regarding the Bureau of 
Land Management's hydraulic fracturing rule, do you draw a 
distinction between a group of stakeholders directly impacted 
by a rule, which multiple states and tribes also challenged and 
a district court judge ruled was outside the scope of the 
Bureau's congressionally delegated authority, and advocacy 
organizations indiscriminately challenging individual projects 
and agency decisions as a part of a larger strategy to 
eliminate oil and gas resource development on Federal land?
    Mr. Barron. Yes, I would draw that distinction. The 
particular rule in question, I think that the premise of the 
Congressman's question may have been flawed. In addition to the 
statutory authority arguments that the Federal judge ruled on, 
the judge had also found during the preliminary injunction 
stage that the rule was not adequately justified and was flawed 
under several aspects of administrative law, and would not have 
provided any additional environmental protection beyond what 
the states and the oil and gas are already providing.
    Mrs. Radewagen. Ms. Lobdell, in discussing the Point Reyes 
National Seashore litigation, you mentioned Marin County and 
the ranchers, whose leases are affected by the litigation, are 
not full participants to the settlement negotiations between 
the plaintiffs and the National Park Service.
    Do you believe that it results in sound policy making when 
special interest group plaintiffs are able to influence the 
terms of agreements to a greater degree than the local 
government and affected leaseholders actually conducting the 
activities being challenged?
    Ms. Lobdell. Thank you for your question. I do not believe 
that is sound policy. I think that we are taking well-intended 
laws to an extreme here. And the result is an incentive 
structure that encourages constant lawsuits at the expense of 
the benefits of commercial management, of natural resources, 
and of rural communities.
    Mrs. Radewagen. Ms. Lobdell, what sort of value can state 
and local governments' potential timber sales purchaser and 
permit holders provide to the litigation and settlement process 
when the Department of the Interior is involved? And how does 
this assist the Department in its cases?
    Ms. Lobdell. These resource users are on the ground. They 
know the nuances of the landscape, they know their own personal 
histories, and they have localized knowledge on a fluency level 
that is localized, both for the facts and the economic impacts 
to the communities. And they can help the Department of the 
Interior bring to light those facts to a judge.
    They are also, when they are involved in litigation, there 
to help influence and work with the Department of the Interior 
in order to move the litigation along, so to speak.
    Mrs. Radewagen. So, would you suggest that we improve the 
process for greater stakeholder involvement in settlement 
negotiations?
    Ms. Lobdell. I believe there is a fundamental question at 
root there, and it is involving stakeholders by giving them a 
right to intervene in lawsuits, so that they can have a seat to 
the settlement negotiations. So, I don't think we jump straight 
to the settlement negotiation. That question has a sub-layer, 
which is, what is their right to participate in a lawsuit?
    In the Point Reyes case, they begged and banged at the 
door, and they are still not considered full parties.
    Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
    Mr. Johnson. Thank you, and the Chair recognizes Mr. Soto 
for 5 minutes.
    Mr. Soto. Thank you, Mr. Chairman. Having served in state 
government for 10 years, we constantly had to balance between 
the rights of litigants to move our government along with the 
costs associated with that.
    My first question is for Ms. Schiffer. We have the U.S. 
Fish and Wildlife Service and Endangered Species Act, and we 
have these specific sections that provide for the ability to 
have lawsuits. Would you agree it has been, for many years, 
congressional intent for these private parties to have a say in 
this process?
    Ms. Schiffer. I would certainly say that the statutes that 
Congress has passed are very clear direction to the agency. If 
a citizen or if somebody petitions, for example, to have a 
species listed, and there is a specific provision in the 
statute for that, then the agency is on a strict time schedule 
that is set out by the statute, 90 days, to evaluate if the 
science supports going further. Then there is another year to 
take action.
    And Congress put those provisions in for a reason. We are 
talking about species, critters and species protection, and 
there is an interest in making a decision about whether they 
need to be protected.
    It is also true that, under the Administrative Procedure 
Act, and specific provisions of the Endangered Species Act, if 
the agency is not doing what it is supposed to do--that is, the 
duty that Congress has given it to do--people can sue to say, 
``Do what you are supposed to do.'' And that is what a lot of 
the lawsuits are.
    The root problem is not the lawsuits. The root problem is 
that the people and the agencies do not have adequate resources 
to do everything that they are supposed to do. So, they can 
tell you at the front end that they are not going to make that 
deadline, and that putting them under a settlement agreement to 
meet the deadline helps to give it some priority.
    Mr. Soto. So, Congress underfunds the agencies, then the 
agencies are not able to do their due diligence and be as 
efficient in naming some of these species and making some of 
the other decisions that they need to make. And therefore, 
these lawsuits are there to hold the agency accountable. Is 
that fair to say?
    Ms. Schiffer. That is exactly right. And that really is our 
checks and balances, three-branch system of government, that if 
Congress passes a law, the executive branch implements it. If 
the citizens think it is not being implemented in the way 
Congress intended, they can go to the courts to get the courts 
to say, ``Agency, you need to implement it, and we are going to 
hold you accountable for that.''
    I will say that sometimes what the settlements have the 
effect of doing is enabling the citizens and the agency to work 
out a schedule that is more pragmatic than if the court just 
says, ``We're going to set the standards.'' But it is all 
carrying out what Congress has specified in the statutes, 
including the deadlines that Congress has set.
    Mr. Soto. Ms. Lobdell made a good point about local 
stakeholders who may be affected by it. Maybe they should have 
an intervening right. What would be the positives and negatives 
of having some of the local businesses affected by these 
lawsuits being able to intervene?
    Ms. Schiffer. Well, there really are two questions that are 
a part of what you are asking. I am all for having a broad 
range of interests being able to be taken into account, and the 
people who are affected having a seat at the table, in general, 
when agencies are considering action to take.
    In terms of when people go to court, can they intervene? 
The rules for who can intervene are set as part of what are 
called the Federal Rules of Civil Procedure, which is a rule 
that the courts make. But my recollection is that that set of 
rules lays before Congress for a period of time before it goes 
into place. And then the courts implement those rules.
    And they have been in place for a while. The Federal Rules 
of Civil Procedure are periodically amended, and there is a 
specific rule providing for intervention of right. And, if not 
a right, then intervention----
    Mr. Soto. So, you wouldn't have an opposition to 
intervening, and it is arguably substantive, so it could be in 
the purview of Congress, in addition to the rules of procedure. 
There is some common ground on how we could tweak the process a 
little bit, while still making sure that citizens have the 
right to push the agencies along to do what they need to do, 
right?
    Ms. Schiffer. I think what the Rules of Civil Procedures 
show is that it is a case-by-case decision based on a set of 
standards and the rules, and how the courts apply the facts.
    Mr. Soto. So, they have the ability to intervene right now, 
under the rules?
    Ms. Schiffer. They have a standard that, if they need it, 
they may intervene of right as a voluntary, discretionary 
matter, or to be amicus participants, but it is up to the judge 
implementing that set of rules. But there is a standard by 
which citizens now can seek to intervene.
    Mr. Johnson. Objection, leading the witness. No, I am just 
kidding.
    [Laughter.]
    Mr. Johnson. The Chair now recognizes General Bergman for 5 
minutes.
    Mr. Bergman. Thank you, Mr. Chairman. And thanks to all of 
you for being here today.
    In my district, which includes the Upper Peninsula of 
Michigan and northern lower Michigan, we have difficulty in 
getting affordable and reliable energy to our entire region. It 
has been my experience that oil and gas operators either cannot 
build the necessary infrastructure because it is too expensive 
to comply with both Federal and state regulations, or the ones 
who can afford to have to charge potentially higher prices just 
to stay in business.
    So, Mr. Barron, can you describe what effect that over-
litigation, that we are discussing here today, would have on 
the potential to a smaller oil and gas operator to come to a 
rural, less-populated region like the Upper Peninsula?
    Mr. Barron. Thank you for that question, Congressman. Many 
of the challenges that we have been discussing would apply 
particularly to that project. Rights-of-way projects are among 
the most difficult and frustrating projects for operators 
developing both on and off public lands. When they are on 
public lands, they are, of course, dealing with the NEPA 
process that is attendant to any sort of construction project 
analysis.
    But also, for rights-of-way projects, some of these groups 
have an opportunity to resort to suits under other statutes, 
including the Endangered Species Act, the Clean Water Act, and 
those sorts of statutes are applicable, not just on Federal 
lands, but in the scenario that you are describing, in a rural 
area where you will find deposits of what might be ephemeral 
waters, where you will find critters, as Ms. Schiffer mentioned 
earlier, that potentially could be subject to endangered 
species challenges.
    So, you can develop and manifest a lawsuit over a rights-
of-way project pretty much in every single situation. And 
particularly when those projects involve fossil fuels, they 
become the preferred challenges for special interest groups.
    Mr. Bergman. OK. Do you think that if Congress could 
actually ease this atmosphere of over-litigation, that 
business, both large and small, but especially small, would be 
more apt to operate in regions like ours?
    Mr. Barron. I do believe that, yes.
    Mr. Bergman. OK. This is for all the panel members, and you 
can either choose to or not choose to answer this. But what, in 
your opinion, is the next step that this Committee should take 
to reverse this injuriously negative trend of using--my word, 
now--frivolous litigation, mean-spirited, in some cases, to 
delay good policy from being implemented?
    Ms. Schiffer. Congressman, with all respect, I have issue 
with the assumptions that you are making, that it is litigation 
that is delaying, and to me, what would be most effective is to 
get together the people who have an interest and a stake in 
what is going on, and to have them talk to each other and see 
if a policy can be developed that takes into account the full 
range of interest that Congress has told the Department of the 
Interior to take into account.
    Mr. Bergman. Would that include or exclude all the lawyers 
in the discussion?
    Ms. Schiffer. Well, I am a lawyer, so you know that I am 
going to say I think the lawyers help in the decision making.
    Mr. Bergman. All right, thank you.
    Mr. Chairman, I yield back.
    Mr. Johnson. Thank you, General. The Ranking Member of the 
Full Committee, Mr. Grijalva, has requested that Ms. Barragan 
go next. So, I now recognize Ms. Barragan for 5 minutes.
    Ms. Barragan. Thank you, Mr. Chairman. And by the way, Mr. 
Bergman, I am a lawyer. We are good people.
    Thank you, Mr. Chairman. I know this was covered a little 
bit earlier, but I want to go back to some of the EAJA issues. 
Signed by President Carter and permanently funded by President 
Reagan, the Equal Access to Justice Act, or EAJA, was enacted 
to give citizens the ability to challenge the government, 
regardless of their social economic status.
    Far from being the taxpayer-funded meal ticket or gravy 
train, as one of our panelists calls it in her testimony, EAJA 
employs built-in safeguards, along with others that have 
evolved through case law, to effectively prevent abuse. In 
fact, under EAJA, parties can recover attorney's fees up to 
$125 an hour, but there have to be two conditions met.
    One is that, first, the party must have won the lawsuit. 
Second, the party must prove that the government's position was 
not substantially justified. This is not an easy standard to 
meet. There are no exceptions to this rule, and many plaintiffs 
do not recover attorney's fees, even when they win their cases.
    The law also restricts who can recover fees under EAJA. 
Individuals with a net worth of more than $2 million or 
organizations worth more than $7 million, or with more than 500 
employees, cannot recover fees.
    Further, there is no evidence that EAJA has fueled 
environmental litigation, although I know there has been some 
testimony that that could be the case. Both industry and non-
governmental organizations have been the recipients of EAJA 
awards.
    And, simply put, I think EAJA provides an essential avenue 
for American taxpayers to use if they have been wronged by the 
Federal Government, and ensures that our civil justice system 
does not exclude the most vulnerable among us.
    My question, and let me start with the testimony, Ms. 
Lobdell argued that EAJA is used as an incentive to sue the 
Department of the Interior and other agencies by individuals 
who would not have sued otherwise.
    Ms. Schiffer, in your experience, have you seen this to be 
the case?
    Ms. Schiffer. Congresswoman, I have not seen that to be the 
case, that EAJA is the reason why people bring lawsuits against 
the government.
    I have two additional observations. There is a Supreme 
Court case called Scarborough v. Principi, where Justice 
Ginsburg quoted congressional legislative history about the 
purposes of EAJA. It said it is to eliminate the barriers that 
prohibit small businesses and individuals from securing 
vindication of their rights in civil actions and administrative 
proceedings brought by or against the Federal Government.
    So, that was clearly what was motivating Congress, it was 
to enable people to vindicate their rights. It was not to 
somehow create a fund. And, in my experience, that is how it 
has worked.
    I would also note that it is my understanding--though I 
can't put my finger on the GAO report right now--that the 
report is that the significant users of the EAJA, people who 
get funds under it, are people who bring cases against the 
Veterans Administration and the Social Security Administration. 
And it really bears paying attention to, that that statute 
serves important purposes for these citizens who have concerns 
about what the government is doing.
    Ms. Barragan. And would you agree that the two standards 
that are met are there to be somewhat of a safeguard against 
frivolous lawsuits because it is so hard to sometimes meet 
these two requirements?
    Ms. Schiffer. Yes, I would definitely agree with that, that 
there are high burdens under EAJA, and not easy to meet. And I 
would also note that, under Rule 11 of the Federal Rules of 
Procedure, people cannot make frivolous claims about it, 
either.
    But it is a significant burden, to show that the government 
was not substantially justified, and that the person has 
prevailed.
    Ms. Barragan. And last, would you be able to explain why it 
is important that the net worth limit makes a distinction 
between non-profits and individuals?
    Ms. Schiffer. It makes the distinction between individuals 
and every other kind of entity. And I am not familiar with how 
Congress came up with those amounts, but it doesn't make 
anything special for non-profits. They are just with every 
other kind of entity, different from individuals.
    I think the thinking was we don't want very rich 
individuals using it, and we don't want rich entities using it, 
either.
    Ms. Barragan. Great, thank you. I yield back.
    Mr. Johnson. Thank you. The Chair recognizes Mr. McClintock 
for 5 minutes.
    Mr. McClintock. Thank you, Mr. Chairman.
    Mr. Jorjani, what is meant by the term ``sue and settle''?
    Mr. Jorjani. I believe those who use the term ``sue and 
settle,'' it is the idea that certain groups seek to advance 
policy initiatives by litigating and then settling to achieve 
that policy initiative. Beyond that, I don't have a----
    Mr. McClintock. So, an objective would be, essentially, 
collusion between litigants and ideological zealots in the 
bureaucracies to achieve a fore-ordained conclusion by court 
order that they know they could not get by regulation or by 
law.
    Mr. Jorjani. I wouldn't want to assume certain intentions 
or characterize others as zealots in this. I think it varies 
from case to case and matter to matter.
    Mr. McClintock. Well, is that the practice? Do we end up 
getting actions by court order that would not have been 
obtained by regulation or statutory change?
    Mr. Jorjani. I would like to thank you for the question. It 
is an incredibly important issue. We look forward to learning 
more about this matter, or the issue, generally. But, in 
theory, if groups are engaging in suing and settling, they are 
holding different agencies to the terms of specific statutes. 
And to the extent those deadlines are in the statutes, we look 
forward to working with this Committee to reform the statutes.
    Mr. McClintock. Mr. Barron, how much of our regulatory cost 
delays would you say are caused not by the litigation itself, 
but by agencies bulletproofing studies to avoid any pretext for 
litigation?
    Mr. Barron. I would certainly say that that is an issue, 
that agencies often are so concerned about the potential of 
being sued in the future, that studies take considerably 
longer, analysis is delayed in order to try to sure up the 
paper trail because they know lawsuits are coming, once the 
final decision is issued.
    Mr. McClintock. Ms. Lobdell, we were told at this hearing, 
and we have been told at previous hearings, this is no big 
deal, there is really not that much litigation that goes on, 
that attorney's fees are very limited and very reasonable. That 
is the theory, anyway. Is that the practice?
    Ms. Lobdell. In reality, that is not the practice. A 
Congresswoman over here had mentioned $125 an hour under EAJA. 
When EAJA was enacted, that was the standard rate, which is 
adjusted for inflation. Last I checked it was $180; that was 
some time ago.
    But the reality is that is not the rate that we are dealing 
with here. We are dealing with an enhanced rate because of the 
specialty of environmental law.
    Mr. McClintock. How much is that enhanced rate, typically?
    Ms. Lobdell. It varies, based on the particular specialty 
and the resume, for shorthand, of the environmental lawyer 
seeking it.
    Recently, our firm was involved in a case on a timber sale, 
and the rate for the attorney was $450 an hour, and I think 
that increased at some point during the case, and the law 
student's rate was $139 an hour. And these are folks not even 
admitted to practice law.
    Mr. McClintock. I had one little community in my old 
district before reapportionment called Colfax. They were sued 
by a group of San Francisco environmental law firms, and the 
legal costs of those San Francisco law firms actually exceeded 
the budget of this little community.
    Is that typical, or at least--let me put it another way. Is 
that an isolated incident?
    Ms. Lobdell. Is the case I am referencing, those rates, an 
isolated incident? In my practice, no. These rates are standard 
from what I usually see and request for attorney's fees.
    Mr. McClintock. In order to get an award for an attorney's 
fee, does the plaintiff have to prevail on all of the claims 
they bring in their lawsuit?
    Ms. Lobdell. No, and to answer the other question asked 
earlier, what should our first step be? Our first step is to 
take an honest look at what EAJA incentivizes, and be honest 
about what the rates are that we are playing with here, how 
many lawsuits there are, and what the incentive structure is.
    The incentive structure is to throw the widest net possible 
against an agency, and to prevail on any of those ``thou-
shalts'' that I mentioned, which otherwise may or may not exist 
under the statute, and to do it frequently, so that you can 
increase your odds of accessing these fees. So, even if you had 
10 claims, and you prevailed on 1, in many instances, the 
environmental plaintiffs argue that claim is so inextricably 
intertwined with the lawsuit as a whole that we cannot really 
separate it out.
    Mr. McClintock. You could sue on 100 different points, win 
on 1, and get an award?
    Ms. Lobdell. You can get an award. And the question there 
is the nature and extent of the award. And the argument that 
comes up is that claim was so connected to the whole, we should 
get more than just that piece of it.
    Mr. McClintock. At these hearings, I have often been 
reminded of Eric Hoffer's line that every great cause becomes a 
movement that becomes a business that becomes a racket. And 
that might be making the environmental attorneys rich, but it 
is killing our forests.
    Ms. Lobdell. It is a well-intended law that, in my opinion, 
has become the primary fundraiser for many non-profit groups 
seeking to halt projects and sue the government.
    Mr. Johnson. Thank you. The gentleman yields back. The 
Chair now recognizes Mr. Huffman for 5 minutes.
    Mr. Huffman. Thank you, Mr. Chairman, and welcome to the 
witnesses.
    Ms. Lobdell, I would like to pick up with you, if I could, 
please. I noticed in your testimony that you made reference to 
the Point Reyes National Seashore, a ranching community. I 
represent those folks.
    Ms. Lobdell. Yes, you do.
    Mr. Huffman. And I realize that there is a narrative in 
this Committee, in this hearing, which is to criticize 
environmental litigation. There is a similar narrative to 
pretty much bash the Park Service wherever possible, but it 
gets a little more complicated when it comes to ranching at 
Point Reyes. That is a vexing situation.
    I was struck that your testimony criticized both things 
that that narrative, the Majority, is calling for, you 
criticized the environmental litigants, but you also said that 
the Park Service had capitulated to them by granting only 1-
year leases, instead of doing what Ken Salazar promised back 
in, before 2013. I think it was before I got to Congress.
    Ken Salazar, though, you and I both recall, promised that 
there would be 20-year leases. I think you said 10 years in 
your testimony, but he actually promised 20 years.
    Here is where I want to take issue with you a little bit. 
The idea that the Park Service had somehow capitulated to the 
environmental litigants is not true. In fact, the reason this 
environmental lawsuit was brought--and I have been critical of 
this environmental lawsuit, so in some ways I find myself a bit 
on your side of this story, in this case. But the reason that 
it was brought was the Park Service was moving methodically to 
keep Ken Salazar's promise of granting 20-year leases. In fact, 
there was a 2013 memo from Director Jarvis specifically 
delegating authority to move forward with the granting of 20-
year leases.
    Without objection, Mr. Chairman, I would like to enter that 
memorandum into the record, just so we can kind of get the 
facts straight.
    Mr. Johnson. Without objection.

    [The information follows:]
                United States Department of the Interior
                         National Park Service
                           1849 C Street N.W.
                          Washington, DC 20240
                              JAN 31 2013

Memorandum

To:     Regional Director, Pacific West Region

From:  Director Jonathan Jarvis

Subject:  Delegation of Authority for Point Reyes National Seashore 
        Agricultural Leases and Directions to Implemennt the 
        Secretary's Memorandum of November 29, 2012

In accordance with 200 D.M. Sec. 2.2 and 245 D.M. 1.1.A., I hereby 
delegate to you the park-specific authority provided by 16 U.S.C. 
Sec. Sec. 459c-5 and 460bb-2(j) in order to issue agricultural leases/
special use permits (``lease/permits'') as provided herein. This 
authority may not be re-delegated.

This delegation authorizes the issuance of lease/permits for the 
purpose of grazing cattle and operating beef and dairy ranches, along 
with associated residential uses by the lessees and their immediate 
families and their employees, and their employees' immediate families, 
within the pastoral zone of Point Reyes National Seashore and the 
northern District of Golden Gate National Recreation Area administered 
by Point Reyes National Seashore. Under this delegation, you may issue 
lease/permits with terms of up to twenty years. These long-term lease/
permits will provide greater certainty for the ranches operating within 
the national park's pastoral zone and demonstrate the support of the 
National Park Service (NPS) and the Department of the Interior for the 
continued presence of dairy and beef ranching operations.

This delegation supersedes and replaces the delegation of authority 
issued by the Acting Director on February 23, 2009, and it supersedes 
any general provision of D.O. 53 or R.M. 53 which would otherwise limit 
the authority of a Regional Director to issue special use permits for 
terms of up to twenty years. The Solicitor's Office has also advised 
that the issuance of such lease/permits under the cited provisions of 
the park's enabling legislation is not subject to the requirements set 
forth under the general NPS leasing authority found at 16 U.S.C. 1a-
2(k) nor the implementing regulations at 36 C.F.R. Part 18.

In his November 29, 2012, memorandum announcing his decision on the 
Drakes Bay Oyster Company, the Secretary of the Interior observed that 
ranching operations have ``a long and important history on the Point 
Reyes peninsula. . . . These working ranches are a vibrant and 
compatible part of Point Reyes National Seashore, and both now and in 
the future represent an important contribution to the Point Reyes' 
superlative natural and cultural resources.''

Preservation of cultural and natural resources within the pastoral zone 
is an important responsibility shared by the NPS and the park ranchers.

This delegation of authority is supportive of multi-generational 
ranching and dairying within the pastoral zone and is consistent with 
the above-referenced provisions of the park's enabling legislation. In 
his November 29, 2012, memorandum, the Secretary directed the NPS to 
``pursue extending permits for the ranchers within [the] pastoral lands 
to 20-year terms.'' This delegation of authority is intended as an 
initial step to implement the Secretary's directive in a timely and 
efficient manner.

In order to assure clarity and consistency for all permits, to clarify 
expectations and commitments, and to allow for operational flexibility 
inherent to the long-term beef and dairy operations, I direct the park 
superintendent to review the permit structure to assure that it 
reflects and protects the interests of ranch operators while meeting 
NPS responsibilities to protect natural and cultural resources. In the 
interim, I further direct the park superintendent and her staff to work 
with the ranchers to assure that current authorizations are continued 
while the new permit structure is developed and implemented.

                                 ______
                                 

    Mr. Huffman. So, the Park Service was specifically 
authorized from the top down to move forward with this, and 
then they actually began a NEPA process, the Ranch 
Comprehensive Management Plan, to make good on that promise. 
The environmental plaintiffs, in their litigation, actually 
said, and I will quote them, ``The Park Service is now 
proceeding with the ranch plan process to consider issuing of 
ranching authorizations up to 20-year terms.''
    So, this was not a Park Service that had capitulated to 
environmental plaintiffs to grant only 1-year extensions. And I 
think this may seem like a nuance to many of the folks 
following this hearing, but to me and the communities I 
represent, it is a big, big deal.
    The Park Service was doing the right thing. And that is one 
of the reasons this litigation was so frustrating for me, and 
where I found myself actually in sympathy to those who have 
criticized it, because environmental plaintiffs were suing the 
Park Service because they were doing the right thing. I did not 
agree with that litigation. But I think it is very important 
that we get our facts straight about it.
    Do you want to respond?
    Ms. Lobdell. Thank you for the opportunity to respond. I 
think we have a fundamental disagreement about the Park 
Service's role historically here.
    Without going into information or attorney-client nuances 
that I may not be able to share and, as you know, some of the 
other confidentiality orders that are in place, leave it to say 
that the pleadings and the briefs on the court record may be 
able to express where we feel like the Park Service could have 
been better.
    I don't know if you had a question about--saying let's get 
the facts straight, so are you asking me if I agree with your 
version? The answer is I think that you and I agree on a lot. I 
know that this is a case that--you have been so supportive of 
the ranchers, and there is a large constituent group of the 
environmental community, as you know----
    Mr. Huffman. It is not a large one, it is a couple of 
groups. And this is another nuance that is very significant. 
Most of the environmental community, actually, was on my side 
of this, and was critical of the lawsuit.
    Ms. Lobdell. Well, the reason I brought this case, 
Congressman, with all due respect, is because the sides collide 
here. A large part of the environmental community and your 
constituents, even yourself, and the ranchers--that is why this 
case is important. Whether we disagree on what the Park 
Service's role was or not, what this case shows is the 
inequities.
    Even in a case where we have a portion of the environmental 
community supporting the agricultural use, this case still 
highlights the inequities and the incentives to sue, and the 
inertia and paralysis that happens----
    Mr. Huffman. In the limited time left, I appreciate that, 
but just for the record, the capitulation to the plaintiffs, 
the 1-year--these are factual inaccuracies that I hope you will 
be a little more careful about, going forward. There will 
always be lawsuits that we disagree with. But I think it is a 
bridge too far to say that all environmental groups have this 
agenda.
    The environmental community, for the most part, was 
critical of this lawsuit. And it is an outlier in many ways, 
and that is an important point as we think about the broader 
narrative.
    Ms. Lobdell. It is a case that I have used to illustrate 
what the inequities are. Thank you for the disagreement on the 
factual circumstances. With all due respect, I disagree with 
your version.
    Mr. Johnson. Thank you both. The Chair now recognizes Mr. 
Pearce for 5 minutes.
    Mr. Pearce. Thank you, Mr. Chairman. Continuing in this 
whole discussion of whether or not the environmental groups 
willingly participate, I would like to listen to the organizers 
of the groups themselves.
    I happen to have here a quote from the guy that founded the 
Tucson-based Center for Biological Diversity, Mr. Suckling. He 
says in the August 31, 2013 Legal News, ``We realize that we 
can bypass the officials and sue, and that we can get things 
done in court. Psychological warfare is a very under-
appreciated aspect of environmental campaigning. The core 
talent of successful environmental activists is not science and 
law, it is campaigning instinct.''
    CBD has participated in well over 800 lawsuits with 
purported environmental claims, so I always really appreciate 
when people are very honest about their intentions coming to 
court.
    Now, to continue the discussion, my friend on the other 
side of the aisle says that the lawyers are limited to $125 an 
hour. That is very practical. Ms. Lobdell, you mentioned $450 
an hour. We have had evidence that it is sometimes $750 an 
hour. So, we are taking money from people who make $31,000 a 
year average in New Mexico, and paying lawyers to sue our 
government.
    That played out in New Mexico just last September. There 
was a lease sale--oil and gas is prevalent in New Mexico. The 
lease sale occurred last September, $145 million on Federal 
leases. Of that, the state was supposed to get $70 million.
    This same Center for Biological Diversity, Wild Earth 
Guardians, both filed protests. The protests were summarily 
thrown out. But for a time, $70 million was withheld from New 
Mexico. And before you think that that is just a number, New 
Mexico is, at the point, running about $500 million short on 
the budget.
    So, more than 10 percent of the shortfall is being held up 
by something that ended up being a frivolous claim, and 
sometimes our critics on the other side think that we are too 
harsh. Myself, I don't think so; 70 million is 1 percent, 1.1 
percent of New Mexico's annual budget. This is what we get to 
face by these groups who understand the political aims they can 
achieve by just bypassing the process: ``We will sue and we 
will stop as much of the process as possible.''
    Ms. Lobdell, you seem to be somewhat familiar with the 
process. We have seen in New Mexico where one environmental 
group will bring the lawsuit and the judge will kick it out. 
Another one will have the same lawsuit, they will scratch off 
the name of the first litigant, and they will put their name in 
there. And it will be tossed out, so they are able to delay, 
say, harvesting timber after a fire. If you delay more than 
about 10 months, previous testimony in this Committee says you 
have lost the value.
    Do you ever run across that kind of serial lawsuit 
business?
    Ms. Lobdell. We do. In my practice, there has been a--if 
one lawsuit does not succeed, there is another outfit right 
around the corner to bring a similar one.
    Mr. Pearce. OK, so that is good enough.
    Ms. Lobdell. They are not identical lawsuits, so to speak. 
Just because we have terms----
    Mr. Pearce. OK, that is clear enough. We will get there. I 
have 25 seconds.
    Ms. Lobdell. But the systematic delay, it happens, and it 
hurts resource use, and it hurts the agency's ability to get on 
the ground and manage the land.
    Mr. Pearce. Yes, so this idea that the law, the EAJA law, 
is to protect the people with no resources--how much do some of 
these non-profits have, as actual net worth?
    Ms. Lobdell. I have not done the specific studies on that, 
so----
    Mr. Pearce. Hundreds of millions, though.
    Ms. Lobdell [continuing]. I would be hesitant. But my 
understanding is it is well over the millions, and there are 
multiple outfits.
    Mr. Pearce. Yes, so they are able to skirt around the law, 
and they still get their settlements, they get their $450-an-
hour settlements, even though it is not supposed to happen, 
according to the underlying law. But like my friend from 
California said, it has become a little bit of a racket here.
    Mr. Barron, you mentioned that the BLM is not complying 
with the quarterly lease sales. In 2016, for example, New 
Mexico had two lease sales, not four. How much do we lose out 
on when we cut down the number of sales, states like mine?
    Mr. Barron. Thank you, Congressman. In New Mexico, 
specifically, you are aware that oil and gas revenue represents 
about a third of the state's----
    Mr. Pearce. It is 40 percent, actually.
    Mr. Barron. Right. And in Fiscal Year 2014, which is the 
last year that I have the numbers in my head, New Mexico 
received over $550 million in Federal royalties. So, it is a--
--
    Mr. Pearce. Yes, so if you can stop two of those, you can, 
say roughly $250 million would be--the amount is half, and then 
we get half of that, basically, so significant, again, well up 
into the----
    Mr. Barron. Precisely.
    Mr. Pearce. I see my time has expired, Mr. Chairman. I 
yield back.
    Mr. Johnson. Thank you. The Chair now recognizes the 
Ranking Member of the Full Committee, Mr. Grijalva, for 5 
minutes.
    Mr. Grijalva. Thank you very much, Mr. Chairman.
    Ms. Schiffer, we have heard plenty of complaints about 
litigation against Interior by environmental and public 
interest groups. We have not heard too much or anything at all 
about the litigation against Interior filed by, let's say, 
ExxonMobil, the Western Energy Alliance, Statoil, Koch Brothers 
Industries, and affiliated funded groups.
    From your experience defending the Federal Government, do 
you think we should change the rules of engagement, legally 
speaking, so that some have access to the courts and others 
not?
    Ms. Schiffer. I do not, Congressman Grijalva. I think that 
the laws that Congress has passed, and the constitutional 
system that we have that enabled people to go to court if they 
think agencies are not complying with the law, helps to give 
everybody a voice, and that the laws that assure that everybody 
has a seat at the table really means that we have a much better 
country. We make much better policy.
    It certainly means that it is a challenge for the Interior 
Department to take into account all of those voices----
    Mr. Grijalva. Yes.
    Ms. Schiffer [continuing]. But that is really our 
democratic system, is that everybody could do it.
    I would also like to make one brief point. When there was a 
discussion about government lawyers being collusive in their 
lawsuits, and I will say I have fairly substantial experience 
with quite a wide range of very good public and Federal 
Government employee lawyers, and they take very seriously their 
obligations under the Rules of Professional Responsibility to 
act as lawyers for their clients. And they do not collude.
    Mr. Grijalva. I am sure, Ms. Schiffer, that the industry 
would love unfettered, unregulated, full access to whatever 
extraction, whatever permit they needed, in order to increase 
their net worth, which is huge, as it is.
    But public access to the courts for all is important. I 
think it is important to the effectiveness of conservation laws 
and our democracy, in general. And litigation sometimes rights 
the ship, in terms of where a decision is going, how a statute 
is being interpreted, how a regulation is being applied.
    Could you respond to that, those comments, if you don't 
mind?
    Ms. Schiffer. I agree with that. I taught environmental law 
at Georgetown Law School for quite some time. And what we used 
to tell our students is that what our system of laws does is 
patrol the borders of what the Federal agencies do. The 
agencies have discretion. They have to take into account a lot 
of interests under the statutes that Congress passes, and that 
going to court makes sure that that range of discretion that 
they exercise is within the framework and borders that Congress 
has set in those statutes.
    And enabling a full gamut of interests and citizens to have 
access to the courts, to patrol the borders that Congress has 
set, is a very important part of our constitutional system.
    Mr. Grijalva. Thank you.
    Mr. Barron, in your testimony you mentioned, on several 
occasions, special interests. Define special interests for me, 
your definition for us to see--and I don't think that 
definition at this point includes your clients. So, would you 
define special interests?
    Mr. Barron. Yes. In my testimony, I was specifically 
referring to, I guess, groups that would classify or 
characterize themselves as either environmental or conservation 
groups. I hesitate to apply those adjectives to those groups, 
because, in my experience, most of these groups act as either 
specialized law firms or specialized lobbying groups, where, to 
the extent there is an environmental or conservation program 
associated with their activities, it is a tangential or a very 
minor part of their activity.
    Mr. Grijalva. And because your client base is heavily 
focused on their industry, and I said to create a more 
comfortable environmental climate for their business, they 
don't fit that definition.
    Mr. Barron. Well, certainly, our client base represents 
mostly a particular industry. Our practice group represents a 
wide range of folks. It is not just oil and gas operators. We 
represent a lot of renewable operators. We are an energy-
focused practice, not necessarily an oil-and-gas-focused 
practice.
    I kind of disagree with the assessment earlier that we are 
looking for an unregulated Utopia. Our clients support 
practical regulation that makes a difference and actually has a 
commensurate environmental benefit associated with the cost 
that those regulations impose.
    Mr. Grijalva. Well, it is good to hear that, because so far 
the tone and tenor has been what I described. Thank you.
    I yield back.
    Mr. Johnson. Thank you. The Chair recognizes Mr. Gosar for 
5 minutes.
    Dr. Gosar. Thank you very much.
    Ms. Schiffer, since it is taxpayer money going out, don't 
you think it should be disclosed publicly, what the settlements 
are, and the attorney's fees?
    Ms. Schiffer. Yes, I do, and I believe it is.
    Dr. Gosar. Well, it has been very tough for Congress to get 
the awards.
    You made another comment that government attorneys do not 
collude. For a future question that you can answer to this 
Committee, I want you to explain the sale of Uranium One. That 
would be very interesting to see collusive bodies working in 
the interest against the United States.
    I think a blanket statement that government attorneys do 
not collude is a false statement, because they are humans, as 
well. And I think making that assertion is just flabbergasting.
    Ms. Schiffer. I am not familiar with----
    Dr. Gosar. Mr. Barron----
    Ms. Schiffer. Excuse me.
    Dr. Gosar. Well, I will let you answer that one, because it 
is a perplexing question, now that everybody wants to talk 
about it in regards to how did we sell our uranium to the 
Russians. It is pretty interesting, and have some complicit 
acknowledgment from attorneys that had better things on the 
books to do than to collude. They should have upheld the law.
    Mr. Barron, I know we have been talking about this exercise 
of litigation. This has a prohibitive cost, so as a percentage 
and dollar amounts, how much do you have to anticipate your 
industry has to look forward to for excess cost to a project?
    Mr. Barron. I mean that is very difficult to--it really 
depends on the project.
    As I referenced earlier, a situation where we had a master 
development plan that was challenged in the New Mexico side of 
the Permian Basin, and there were projects there that were 
deferred, where the operator had allocated over $160 million 
for that project.
    I worked on another case in December, where we are talking 
about delays in permitting in the Uintah Basin in Utah, delays 
in permitting that would have pushed operations into a non-
drilling time period because of endangered species, migratory 
bird issues. And there were about $50 million in allocated 
resources for that particular project.
    Developing oil and gas wells is an expensive proposition. 
When those companies allocate money far in advance for long 
periods of time, and when projects are delayed, it is not 
necessarily easy because of equipment and contracting to 
reallocate it to another project. Sometimes it delays return on 
investment for significant amounts of money.
    Dr. Gosar. Time is money, right?
    Mr. Barron. Absolutely.
    Dr. Gosar. So, utilizing the passage of time, you cannot 
measure that.
    Mr. Barron. One of the real difficulties for delays that 
are caused by litigation is not necessarily that the project 
will not get to take place at some point in the future, but the 
actual delay makes investment and financing very difficult.
    Dr. Gosar. How does that apply to the BLM and their 
statutory applications on timetables? How does that apply 
there, and how does it delay that?
    Mr. Barron. Well, we have had rulings within the last 
several months, actually, that those timetables can be, are 
judicially enforceable, and should be mandated--that the 
statute actually mandates those timetables, but I can tell you 
that those timetables are almost never complied with.
    Dr. Gosar. Can you give an example of one that actually 
was?
    Mr. Barron. I am not familiar--well, for example, under the 
Mineral Leasing Act, as I mentioned earlier, once a permit 
application is complete, BLM must act on it within 30 days--not 
necessarily grant it, but either say we are going to grant it, 
or here is why, and here is our estimated timetable.
    Right now, the former BLM Director, Mr. Kornze, had 
testified before this Committee that average processing time 
for an APD on Federal lands is approximately 200 days.
    Dr. Gosar. So, looking at that application, it doesn't 
suffice to follow the statute.
    Mr. Barron. They are not following the statute.
    Dr. Gosar. And when you look at the prohibitive aspect of 
the litigation, it is better to go somewhere else than, in many 
cases, some of these areas, right?
    Mr. Barron. Absolutely. I think it is undisputed that over 
the last certainly decade to decade and a half, Federal energy 
production has grown significantly. But the percentage of that 
production that occurs on Federal lands has remained the same 
or diminished during the same time period.
    Dr. Gosar. Got you.
    Ms. Lobdell, you are familiar with CBD, I am sure, and some 
of the wood harvesting down in the Arizona way?
    Ms. Lobdell. I am very vaguely familiar.
    Dr. Gosar. Well, they made the comment that they did not 
have to do any lawsuits recently, and that is because they did 
all the lawsuits in the 1970s, 1980s, 1990s, and 2000s, to put 
almost every business out of business. And that is why we have 
the catastrophic fires that we have today. And that is why, 
ecologically, we have huge problems, that when crown fires 
actually burn they incinerate the soil. And what ends up 
happening is you have an ecological catastrophe, where nothing 
grows back in those areas. Some of that mitigation also has to 
be looked at, don't you think?
    Ms. Lobdell. I absolutely agree, and our water supply is a 
threat with those fires, as well.
    Dr. Gosar. I ran out of time. Thank you very much.
    Mr. Johnson. Thank you.
    We thank the witnesses for their valuable testimony, and 
the Members for their questions.
    The members of the Committee may have some additional 
questions for the witnesses, and we will ask them to respond to 
these in writing. Under Committee Rule 3(o), members of the 
Committee must submit witness questions within 3 business days 
following this hearing, and the hearing record will be held 
open for 10 business days for the responses.
    If there is no further business, without objection, the 
Subcommittee stands adjourned.

    [Whereupon, at 11:38 a.m., the Subcommittee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

                        Rep. Grijalva Submission


                      Western Watersheds Project,  
                                    Arizona Office,
                                            Tucson, Arizona

                                                       July 3, 2017

House Committee on Natural Resources,
Subcommittee on Oversight and Investigations,
1324 Longworth House Office Building,
Washington, DC 20515.

Re: Oversight Hearing on ``Examining Policy Impacts of Excessive 
        Litigation Against the Department of the Interior''

    Dear Honorable Committee Members:

    I watched the June 28, 2017 hearing, ``Oversight Hearing Examining 
Policy Impacts of Excessive Litigation Against the Department of the 
Interior'' with great interest and I was particularly struck by the 
inflammatory testimony of the witness, Ms. Caroline Lobdell, regarding 
the use of the Equal Access to Justice Act (EAJA).
    Ms. Lobdell testified to the committee, ``EAJA is a taxpayer funded 
meal ticket for environmental groups'' and that it serves as a ``gravy 
train.'' She fails to mention that EAJA is also available to compensate 
industry, a fact with which she should be intimately familiar.
    On June 19, 2017, Ms. Lobdell and Western Resources Legal Center 
(WRLC) filed Cahill Ranches, Inc. v. Bureau of Land Management in the 
United States District Court of Oregon, Medford Division. This case 
challenges the federal authority to impose grazing restrictions on a 
public lands grazing allotment and is brought by Ms. Lobdell and WRLC 
on behalf of private ranchers. The filed complaint concludes with Ms. 
Lobdell's request that the court, ``Award plaintiff its reasonable 
costs, litigation expenses, and attorney fees associated with this 
litigation pursuant to the Equal Access to Justice Act, 28 U.S.C. 
Sec. Sec. 2412 et seq. and/or all other applicable authorities.'' That 
is, Ms. Lobdell is seeking to avail herself of the same compensation 
she derides in her testimony.
    Western Watersheds Project greatly appreciates the comments of 
Congressman Raul Grijalva regarding the reality that courts are the 
remedy of last resort when the agencies are underfunded to carry out 
their environmental mandates. Ms. Lois Schiffer also added important 
fact-based testimony. Litigation ``rights the ship,'' as Mr. Grijalva 
said, and it's a critically important part of our constitutional 
system. It is a tool that Western Watersheds Project uses when its 
administrative attempts have failed to halt a dangerous or 
unsustainable project.
    Additionally, environmental litigation is only successful when the 
government has broken the law, and to the extent that the Trump 
Administration ``is bracing for an influx of litigation,'' per Mr. 
Johnson's opening statement, it speaks to its own intention to push 
through major energy projects that skirt compliance with our bedrock 
environmental laws.
    Thank you for adding this letter to the hearing record.

            Sincerely,

                                            Greta Anderson,
                                                   Deputy Director.

                                 ______
                                 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

  --  Rep. Johnson Submission: Statement on the Hearing from 
            William L. Kovacs, Senior Vice President, 
            Environment, Technology & Regulatory Affairs at the 
            U.S. Chamber of Commerce, dated June 28, 2017.

                                 [all]