{"id":2199,"date":"2025-02-01T23:06:48","date_gmt":"2025-02-01T23:06:48","guid":{"rendered":"https:\/\/blogs.oregonstate.edu\/lackey\/?p=2199"},"modified":"2025-08-01T17:13:06","modified_gmt":"2025-08-01T17:13:06","slug":"sweetheart-and-sue-and-settle-lawsuits-a-case-study","status":"publish","type":"post","link":"https:\/\/blogs.oregonstate.edu\/lackey\/2025\/02\/01\/sweetheart-and-sue-and-settle-lawsuits-a-case-study\/","title":{"rendered":"“Sweetheart” and “Sue and Settle” Lawsuits: A Case Study"},"content":{"rendered":"\n

Robert T. Lackey<\/strong><\/a><\/strong><\/p>\n\n\n

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Department of Fisheries, Wildlife, and Conservation Sciences<\/em><\/strong><\/p>\n\n\n\n

Oregon State University<\/em><\/strong><\/em><\/p>\n\n\n\n

February 1, 2025<\/p>\n\n\n\n

What is the proper role of government employees when their personal<\/em> policy preferences differ from those of their employer<\/em>?  Specifically, is it acceptable for government employees to play a role in sweetheart<\/em> or sue and settle lawsuits<\/em>?  To begin formulating an answer, here is a case study (based on a real event, but written to conceal specific individuals or lawsuits:<\/p>\n\n\n\n

~~~~~~~~~~~<\/p>\n\n\n\n

The Case Study<\/strong><\/strong><\/p>\n\n\n\n

(Based on DC experience. Most specific references are altered.)<\/strong><\/p>\n\n\n\n

Ever since a Grade 4 field trip to a nature reserve, Rena Webfoot was fascinated by amphibians.  Eventually, she finished a Master\u2019s degree in conservation biology.  Her thesis research topic, not surprisingly, focused on determining the cause of the worldwide decline of amphibians and, specifically, the Scarlet Toad.  <\/em><\/p>\n\n\n\n

Starting in graduate school, she was active in the Society for Conservation Biology, the International Union for the Conservation of Nature, and the Sierra Club.  After completing her Master of Science degree, she held several jobs in environmental and natural resource agencies.  Still, it was not until she landed her dream job as chief of the Amphibian Branch within the Office of Threatened and Endangered Species within the US Fish and Wildlife Service, part of the Interior Department.  There were hundreds of species under consideration for listing under terms of the Endangered Species Act.  The Office Director regularly made decisions about assigning staff to evaluate specific species.  With the resources available, many species dropped down the priority list for evaluation, while others were fast-tracked.<\/em><\/p>\n\n\n\n

One day, as Ms. Webfoot reviewed the updated candidate species list, one species jumped out.  Halfway down the list was the Scarlet Toad, the same species she had studied for her Master\u2019s degree.  She felt passionate about this species \u2015 after all, she had spent many long nights observing them in the wild.  That same day, she met with the office director to make her case that the species should be listed immediately.  The office director listened, but he concluded their meeting with an unwelcome (to her) decision:<\/em><\/p>\n\n\n\n

\"<\/kbd>We have many species we could, arguably, evaluate with the available resources.  In terms of risk, the Scarlet Toad is of average risk and not in the top tier.  I focus our resources (workforce) on the species at greatest risk of near\u2013term extinction.  The Scarlet Toad does not, in my opinion, meet these criteria.  The line must be drawn somewhere.<\/em>\"<\/kbd><\/p>\n\n\n\n

Never one to accept defeat, Ms. Webfoot talked to her amphibian colleagues about the Scarlet Toad at the next local DC chapter meeting of The Society for Conservation Biology.  Several suggested she contact her former fellow graduate student now at the Center for Biological Diversity.  That very day, she did.  He (an outreach staffer) listened to her carefully, then concluded that this was a case that they (CBD) could probably win \u2014 or at least force the Fish and Wildlife Service to move the Scarlet Toad into the \u201ccritical\u201d category, thus eligible for immediate evaluation and likely listing.  He requested that she discretely<\/strong> send him the relevant inside<\/strong> scientific and assessment file on the species.  He would share this information with their lawyers and let her know (orally) of their decision.  In any case, she was advised not to put anything in writing, nor talk to Office colleagues unless she was convinced of their discretion.<\/em><\/p>\n\n\n\n

Nothing happened for a few months.  Eventually, the Department of Interior\u2019s Office of General Counsel contacted the Endangered Species Office Director (her boss) and notified him that the Government had been sued by the Center for Biological Diversity for failure to list the Scarlet Toad.  To the Department\u2019s lawyers, it looked like the plaintiff\u2019s case was strong.  Based on considerable experience with similar lawsuits, they estimated that this case would take years to play out.  The Office of General Counsel had a limited number of lawyers, the Scarlet Toad listing was not a high priority politically, and he was reluctant to burn many \u201cbillable hours\u201d defending the Department in a low-priority lawsuit.<\/em><\/p>\n\n\n\n

The main argument of the lawsuit would be that the Fish and Wildlife Service had \u201carbitrarily and captiously\u201d moved the Scarlet Toad down the candidate list.  Thus, it would be years until it rose to the first tier.  In essence, the Government lawyers would negotiate with the Center for Biological Diversity to avoid costly litigation.  In the settlement, the Department would agree to move the Scarlet Toad to the top of the candidate list if<\/u> the Center would withdraw the lawsuit.  This tradeoff was the usual way that these cases were handled.  Besides, the Government would agree to pay their legal fees ($48,000).  This strategy would be less expensive to the taxpayers than defending the lawsuit.  From the lawyer\u2019s perspective, this was all pretty routine.<\/em><\/p>\n\n\n\n

The Office director called Ms. Webfoot into his Office and directed her to move the Scarlet Toad to the top of her priority list and have her staff start working on the listing.  Ms. Webfoot was ecstatic.  Her supervisor was visibly less pleased and wondered aloud how the Center was tipped off and acquired copies of their key in-house documents.  With a wink, he wished her well.  They both went back to work.<\/em><\/p>\n\n\n\n

~~~~~~~~~~<\/p>\n\n\n\n

The Rena Webfoot case study is a heavily edited description of a hypothetical example of a sweetheart lawsuit<\/a> based on my experiences with the Fish and Wildlife Service<\/a> (Department of the Interior) and the U.S. Environmental Protection Agency<\/a> in Washington, DC.  The specifics are well-modified to avoid speculation about who was involved.<\/p>\n\n\n\n

There are no universally accepted definitions of sweetheart <\/strong>or sue and settle<\/strong> lawsuits, nor is their frequency in ecological policy disputes known with confidence.  Typically, a sue and settle<\/a> reference involves collaboration<\/em> between government bureaucrats working in their official capacity<\/em> with one or more environmental or ecological advocacy groups<\/a>.<\/p>\n\n\n\n

Related to sue and settle<\/strong> lawsuits, but with differences, sweetheart<\/strong> lawsuits tend to be applied as a descriptor to cases when individual government employees<\/a> work outside (and often secretly)<\/em> their official duties to facilitate a lawsuit against the agency.<\/p>\n\n\n\n

Usually, such lawsuits are encouraged by the Government employee operating as a member of, or supportive of, a professional or advocacy organization.  For example, a government scientist working for the U.S. Forest Service,<\/em> might be a member of the Sierra Club<\/em> and help that organization sue the Federal Government to force the adoption of a policy (e.g., eliminating commercial logging) that the employee (and the Sierra Club) prefer.<\/p>\n\n\n\n

While the total number of lawsuits<\/a> targeting the Federal Government is relatively easy to determine, it is difficult to separate how many involve unofficial<\/a> collaboration between Federal employees and advocacy organizations.  Specifically, how often Federal employees use information and insights gained through their<\/em> government jobs is unknown.<\/p>\n\n\n\n

Based on my experience, it seems relatively common with governmental regulatory organizations (i.e., Environmental Protection Agency<\/a>, U.S. Forest Service<\/a>, and Bureau of Land Management<\/a>) and professional\/scientific organizations (i.e., American Fisheries Society<\/a>, The Wildlife Society<\/a>, Society for Conservation Biology<\/a>, and Society of American Foresters<\/a>).<\/p>\n\n\n\n

Behind the anonymity of government bureaucracy, these kinds of \u201creal world\u201d situations are common.  You should expect to encounter such examples in your career.  Presumably, in your analysis, you would point them out to the public and policy makers \u2015 or would you?  Whether this tactic is appropriate \u2014 or not \u2014 is entirely a judgment that would vary among the various players in policy debates.  Some would regard a \u201csweetheart lawsuit\u201d as an underhanded and unfair advocacy tactic.  Conversely, others would argue that organizations that employ such tactics merely do what the laws allow.  Analysts do not pass judgment, much less decide such questions.<\/p>\n\n\n\n

So, your challenge with this case study is to assess whether such behavior by a Federal (or other government) employee is appropriate and ethical.  Some might argue that an employee (paid by the taxpayers) should be policy impartial in all job\u2013related dealings and not use their inside information to favor a particular policy preference.  Conversely, others might argue that strongly held personal values from a scientific expert outweigh an obligation such employees have to be policy impartial.  There are likely other positions that employees assigned to work on endangered species issues might hold.<\/p>\n\n\n\n

Depending on an advocate\u2019s policy preferences, sweetheart<\/em> lawsuits are typically viewed from one of several perspectives:<\/p>\n\n\n\n

(a)<\/strong>  An effective advocacy weapon that is available to anyone \u2014 and it is often highly effective<\/em>.<\/p>\n\n\n\n

(b)<\/strong>  An example of an unintended and undesirable consequence of the ESA which creates a situation where \u201cinsiders\u201d (Government employees and ENGOs (Environmental Non-Governmental Organizations) collude to implement their<\/u> policy objectives (not those of the public)<\/em>.<\/p>\n\n\n\n

(c)<\/strong>  An avenue for Government employees to operate as private citizens to push their personal policy preferences outside the constraints of their official duties<\/em> and thus compromise their employer’s mission.<\/p>\n\n\n\n

As a policy analyst, regardless of your personal opinion or policy preference, sweetheart lawsuits are common, often involve Government employees engaged outside their official duties, and are highly effective in achieving the suing organization’s policy goals.  Analysts and policy makers should be vigilant in watching for them.  Considering sweetheart and friendly lawsuits as a policy analyst, think about these broader policy questions:<\/p>\n\n\n\n