Environmental lawyer objects to gov's 'forum shopping' remarks
JARED MILLER Star-Tribune capital bureau | Posted: Tuesday, April 17, 2007 12:00 am
CHEYENNE - The lawyer for eight environmental groups fighting to maintain federal protection for grizzly bears said he'll carefully consider the options before deciding where to file an expected lawsuit.
"I wouldn't be doing my job if I didn't do that," said Douglas Honnold, an attorney for Earthjustice in Bozeman, Mont.
Gov. Dave Freudenthal last week asked Honnold in a letter to take the "honorable action" and file the lawsuit in federal court in Wyoming, where about 90 percent of the greater Yellowstone area's estimated 500-600 bears live.
Freudenthal urged Honnold not to "forum shop" for a sympathetic court in another state, a practice that has been widely criticized by Westerners in past federal land and wildlife disputes.
"Having a distant forum render a decision on a matter of such great import to Wyoming and its people will only foster further cynicism regarding the (Endangered Species Act) and judicial review of decisions made under the ESA," Freudenthal wrote in the two-page letter.
Honnold said "forum shopping" is considered a pejorative term in the legal community and suggests inappropriate factors are being considered in the decision about where to file the lawsuit. He said Freudenthal's request is unusual.
"It's a little bit like name-calling that the side that doesn't like what's happening throws at the other side," Honnold said. "In this case, there's no basis because we haven't made any decision yet."
Honnold notified the federal government earlier this month that his clients intend to file suit if the U.S. Fish and Wildlife Service does not reverse its decision last month to lift federal protection for grizzly bears.
The groups say the current size of the bear population, mostly found in and around Yellowstone National Park, won't guarantee long-term survival of the species in that area.
Honnold said Monday he hasn't yet responded to Freudenthal, nor has he made a final decision about the venue for the lawsuit.
Federal law allows plaintiffs in lawsuits against the government to file suit in states that have ties to the case. In this case, Wyoming, Idaho and Montana are all plausible venues, as grizzly bears live in all three states, Honnold said.
Washington, D.C., also could be a possibility, as many important decisions regarding grizzlies have been made there.
The decision about where to file a federal lawsuit can have major repercussions for the case, especially when it comes time to appeal to a higher court.
For example, environmental groups have been accused of specifically seeking out Montana courts so they can appeal losses to the federal 9th Circuit, which is considered by some to be liberal. Federal cases in Wyoming go to the 10th Circuit on appeal.
That was a key argument when Sen. Craig Thomas, R-Wyo., in 2004 sponsored legislation that would have forced plaintiffs to file lawsuits against federal agencies in courts "where the affected land is located."
Thomas proposed the legislation after a judge in Washington, D.C., refused to transfer a case on snowmobiling in Yellowstone National Park to Wyoming.
"I can see that if this becomes an issue again, it could be something that we could revisit," Thomas's press secretary, Cameron Hardy, said on Monday.
The Yellowstone snowmobile lawsuit is sometimes cited as a clear example of forum shopping and its potential hazards for Western states.
In that case, Wyoming-based U.S. District Judge Clarence Brimmer threw out a Clinton-era rule that limited snowmobiling in Yellowstone and Grand Teton national parks. Just a few months earlier, a federal judge in Washington, D.C., had upheld the rule.
Brimmer later told a newspaper reporter that he didn't think an Eastern judge was in position to "assess fairly the interests that are involved in the process such as with this rule or the so-called Clinton 'roadless rules' for national forests. I think these ought to be handled by Western courts."
In a separate case in 2004, the state of Wyoming successfully argued that a lawsuit over coal-bed methane development be moved from a federal court in Montana to Wyoming. Attorney General Pat Crank at the time said the decision was an "indictment of the forum shopping that the environmental groups on the other side of this lawsuit engaged in."
Honnold said the outcome of the current grizzly bear case will have a lasting impact on not only Wyomingites, but Americans and citizens of the world.
"This is a situation where people from all around the country, and indeed all around the world, come to Yellowstone Park in the hopes of seeing grizzly bears, so many people from certainly all around the United States have a great interest in protecting grizzly bears," Honnold said.
The environmental groups involved in the grizzly lawsuit include the Natural Resources Defense Council, Sierra Club, Alliance for the Wild Rockies, Humane Society of the United States, Center for Biological Diversity, Western Watersheds Project, Great Bear Foundation and Jackson Hole Conservation Alliance.
Reach capital bureau reporter Jared Miller at (307) 632-1244 or at {M3jared.miller@casperstartribune.net.