Sue and Settle Secretarial Order

This effort will move towards greater transparency in the land management process and hopefully reduce the use of the endangered species act as an alternative to planning by those opposed to multiple use.


Letter dated September 13th from Tim Williams, Deputy Director External Affairs, Office of the Secretary, U.S. Department of the Interior:

On  Friday, September 7, U.S. Secretary of the Interior Ryan Zinke signed a Secretarial Order to prevent the practice known as “sue and settle” by promoting public engagement, transparency, and accountability in Consent Decrees and Settlement Agreements.

Over the past five years, the Department of Interior (DOI) has been party to a staggering number of settlement agreements and consent decrees, often with no input from or even notice to the American people, leaving the door open for potential abuse.  

Between  January 1, 2012, and January 19, 2017, DOI agreed to enter into over 460 settlement agreements and consent decrees (an average of over 90 per year) and agreed to pay over $4.4 billion in monetary awards. From January 1, 2016 through January 19, 2017 alone,  DOI entered into approximately 96 settlement agreements or consent decrees, agreeing to pay over $1.7 billion in monetary awards.  This high number of settlement agreements and consent decrees and accompanying tab has sparked concerns that taxpayer dollars and DOI’s regulatory agenda are being handed off to special interest groups, contrary to the wishes of Congress and the American voters.

Secretarial Order 3368 is intended to alleviate concerns the litigation process has been used to undermine the procedural safeguards Congress put in place by giving the American people a window into where the money is going and a voice before DOI makes a recommendation to accept or enter into a settlement with large policy or budgetary implications.

Main points of the Secretarial Order (See link below for more detail):

  • Within  30 days, DOI will establish a publicly accessible “Litigation” webpage that is prominently linked from the Office of the Solicitor’s homepage.
  • Within  90 days,  DOI will post a searchable list of final judicial and administrative consent decrees and settlement agreements that continue to govern Departmental actions, including a brief summary of each decree or agreement, a note of any attorney’s fees or costs paid, and a link to the text of the decree or agreement.
  • Any proposed consent decree or settlement agreement that commits DOI to seek a particular appropriation or budget authorization from Congress or formally reprogram appropriated funds, and/or places obligations on the Department that extend beyond five years at the top of the Litigation page, publish notice of the proposed consent decree or settlement agreement in the Federal Register, and provide a public comment period of at least 30 days.
  • DOI,  including any agency or bureau thereof, will not recommend that the Department of Justice enter into a consent decree or settlement agreement that:
    • Converts into a mandatory duty the otherwise discretionary authority of the Secretary and/or his designees (including bureau and office heads) to revise, amend, or promulgate regulations.
    • Commits DOI or any of its bureaus and offices thereof to expend funds that Congress has not appropriated and that have not been budgeted for the action in question.
    • Requires  DOI or any subdivision thereof to pay attorney’s fees and costs unless the plaintiff or petitioner has established a strong likelihood of obtaining such fees under the law.
    • Prohibits  public disclosure of any consent decree or settlement agreement, except to the extent necessary to protect proprietary information, such as trade secrets, or otherwise mandated by law.

Here is a link to SO 3368.