Have judges gone wild? Plaintiffs' choices and success rates in litigation against federal administrative agencies.

• Author: Feller, Joseph M.
• Position: The Wilderness Act at 50

EDITORS' INTRODUCTION

PETER A. APPEL ** & MARK SQUILLACE ***

Our colleague, Professor Joe Feller of the Sandra Day O'Connor College of Law at Arizona State University was well-known and well-regarded in the community of environmental and natural resources law professors. He stood out for the quality of his scholarship, as well as his active and helpful participation in our community and his community at large. Tragically, a car struck and killed Professor Feller on the evening of April 8, 2013, while he was returning home from work.

Joe had been the inspiration for a natural resources law teachers conference scheduled for the following month in Flagstaff, Arizona. Following that conference, Professors Appel and Squillace conversed and agreed that one of many suitable tributes to Joe would be to arrange to publish one of the last articles that Joe drafted. The subject was wilderness. Professor Squillace received the Article in draft with Joe's request that Squillace make comments on it. Professor Appel--who had never met Joe in person but had spoken to him on the phone and had exchanged emails several times with him--received the Article in draft because the Article directly and pointedly critiques some of Appel's own work. Despite his near-complete rejection of Appel's arguments, Joe nevertheless suggested that, as the Article matured with revision, he and Appel could be co-authors on the piece. Appel responded in a lengthy email, which is reproduced after the main body of the Article. Unfortunately, that collaboration or friendly debate never occurred. Nevertheless, the offer to co-author the Article is a striking testament to Joe's generosity, willingness to cooperate, and his focused dedication to get the answer to a problem right. As those who have delved in the law know, getting the right answer is not as easy as it sounds.

As the reader will see, this Article involves important issues regarding wilderness specifically and federal environmental litigation generally. Despite the fact that it does not represent Joe's finished thoughts on the subject, we nevertheless believe that this Symposium issue of Environmental Law offers an ideal forum for this fine piece of scholarship. With the generous agreement of the journal's editors, as well as the permission of Joe's family and his community at ASU Law, we present this Article to join its rightful place in the legal literature about wilderness.

A note on editing: Because we wanted this Article to represent Joe's views and not our own, we have taken a very light touch in editing this Article. We have taken the liberty to correct typographical errors and citations to conform to the Bluebook and to Environmental Law's style guidelines. Where we believed that a thought needed expansion or clarification, we have done so and noted the emendation in square brackets. We tried to channel Joe as best as we could to keep these thoughts in the spirit of Joe's thinking, not our own.

In closing, we wish to express deepest gratitude once again to Professor Joe Feller's family for granting us permission to reproduce Professor Feller's Article posthumously. We hope that this serves as a fitting tribute and memorial to the life of a great scholar, passionate advocate, good friend, and all-around mensch.

1. INTRODUCTION II. EMPIRICAL STUDIES OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTIONS A. Pre-Chevron Studies (1975-1986) B. Post-Chevron Studies (1990-2006) C. The Appel Study (2010) III. PLAINTIFFS' CHOICES IN PRIVATE DAMAGES LITIGATION A. The Priest-Klein Model B. Application of the Priest-Klein Model to Judicial Review of Agency Decisions IV. CRIMINAL TRIALS AS AN ALTERNATIVE ANALOGUE A. The 3R Model V. PLAINTIFFS' SELECTION IN WILDERNESS LITIGATION VI. WHICH MODEL? A. "More Protection" Cases: Modified Priest-Klein or Criminal Model B. "Less Protection" Cases: Random Selection? I. INTRODUCTION

   In March of 2010, there appeared in the Stanford Environmental Law Journal an empirical study of litigation between private parties and the federal government over management and use of federal wilderness areas. Entitled Wilderness and the Courts, (1) the study included a few different types of cases: judicial review of administrative decisions by the federal agencies that manage wilderness areas, (2) tort and takings claims against these same agencies arising from such management, and criminal prosecutions for violations of the Wilderness Act of 1964 (3) and related statutes. While the results of the study may have warmed the hearts--or confirmed the views--of wilderness advocates and other environmentalists, they were likely alarming to wilderness opponents and to students of the relationship between administrative agencies, courts, and the body politic.

   The study, by Professor Peter Appel of the University of Georgia, classified wilderness related cases into two categories. (4) In the first category, which Professor Appel called suits seeking "more protection," were "cases in which the challenge [against a federal agency] was brought by an environmental organization seeking greater protection for fewer uses within a wilderness area." (5) In the second category, labeled "less protection" suits, were "cases in which a plaintiff sought more uses within a wilderness area or more protection for private rights within a wilderness area." (6) The study revealed a striking imbalance between the courts' reception of these two types of suits: Environmentalists won about half (52%) of their cases against the federal government, while those asserting private rights or more freedom to use wilderness areas won only about one in seven (14%) of their cases. (7) Professor Appel conceded that several alternative explanations of the data were possible and called for further research, (8) but stated:

   The foregoing evidence suggests that, in the context of protecting wilderness areas, courts are not acting as much like courts as one would predict from the doctrines of deference that, apply in these cases. An implication of this suggestion is that, in this context, judges behave more like policy makers than neutral arbiters. (9) Professor Appel was not the first to use tallies of victories and defeats to divine the influence of judges' ideologies on their decisions, or to measure the degree of judicial deference--or lack thereof--to the expertise and policy judgments of administrative agencies, or to reach conclusions about the extent to which such agencies are, or are not, conforming their decisions to the dictates of the law. Several studies have examined the success rate of court challenges to agency decisions as a function of several variables, including, among other things: time; whether the agency decision reflected a new or old, or consistent or inconsistent interpretation of a statute; and the substantive content of the agency decisions. (10) The results of these studies have been presented as evidence for or against temporal trends in agency compliance with statutory requirements or in the degree of judicial deference to agencies, (11) for or against various models of judicial review of agency action, (12) and for or against ideological biases on the part of judges. (13)

   Unfortunately, some of these studies suffer from a methodological flaw that renders them at best suspect and at worst meaningless. That flaw is the implicit assumption that the cases that are presented to the courts for decision represent an unbiased sample of federal administrative agency actions. (14) Under this implicit assumption, for example, a decrease over time in the success rate of anti-agency litigation is taken as evidence that agencies are increasingly compliant with the law or that courts are increasingly deferential to agencies. (15) Under the same implicit assumption, a difference in success rate depending on the substantive content of the decisions under review is taken as evidence of judicial bias.

   In fact, however, courts see a highly selected sample of federal agency decisions. The selection is performed not by the courts themselves but by the affected parties who choose whether or not to seek review of the decisions. This selection is likely to have a substantial, and in some cases overwhelming, effect on the success rate of such litigation. For example, if the number of affected parties who are ready, willing, and able to bring agencies to court changes over time, then the success rate of such litigation will also change over time. More specifically, the more parties there are with the resources and motivation to file lawsuits challenging agency action, the more likely it may be that such lawsuits will be filed even when the prospects for success are limited. And the more low-odds challenges to agency actions are brought to court, the higher will be the affirmance-reversal ratio. Similarly, if parties on one side of an ideological divide are more likely to litigate than are their ideological opponents, then a differential success rate depending on the substantive content of agency decisions may simply reflect the greater tendency of the former than the latter to seek judicial review of adverse agency decisions even when their chance of success is uncertain or unlikely.

   In the area of private litigation seeking monetary damages--e.g., torts or contract disputes--substantial empirical and theoretical work suggests that the selection by plaintiffs--or potential plaintiffs--of which cases to take to trial and which to settle is the dominant factor influencing the plaintiffs' success rate in those cases that do proceed to trial. (16) In other words, the ratio of plaintiffs' verdicts to defendants' verdicts tells us more about plaintiffs' strategic choices than it does about the substance of legal rules, the attitudes or biases of judges or juries, or the propensity of Americans to commit torts or breach contracts. Similar research in criminal law reveals that the conviction-acquittal ratio in...