Litigating Agency Change

Abstract

A study of Forest Service‐related litigation and administrative appeals was undertaken to examine their potential roles in effecting change within the Forest Service. The frequency of federal lawsuit decisions involving the Forest Service increased markedly between 1971 and 1993, indicating a dramatic increase in the use of litigation as a tool to force change within the agency, particularly in the Ninth Circuit. Administrative appeals followed a similar increasing trend. An examination of the instigators and purposes of lawsuits found that litigation is used most frequently by environmentalists and most often to block commodity production activities by the agency. Although the agency wins the majority of suits in which it is involved, litigants who initiated lawsuits to stop commodity production activities had higher success rates than litigants seeking to challenge additional environmental measures or to promote commodity production by the agency. A qualitative examination of five National Forest Management Act lawsuit case studies concluded that when litigants are successful in legal challenges against the agency, the court decision often results in substantive on‐the‐ground changes in management, thereby providing an incentive for additional use of litigation as a means to alter agency actions. These results indicate that the courts and administrative appeals process likely have been significant factors in catalyzing change within the Forest Service.

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