Equal Access to (In)Justice Act, Part II

Oct 6, 2021

Editor’s Note: This article appears in the September/October 2021 of the Rocky Mountain Elk Foundations Bugle Magazine. Although primarily focused on the work of the RMEF, the topic is so significant that we are re-publishing it -in segments- this week. Today, “Sue, Brag, Profit”- a look at how litigants not only use the Equal Access to Justice Act to bankroll lawsuits, but fund their other operations.

Sue, Brag, Profit

Not only do litigant groups generate money from attorney fees but they then use that financial windfall to bankroll large marketing campaigns to solicit more donations based on court cases.

“Environmental groups use the ESA, and challenges to decisions under the ESA, as incredibly effective fundraising tools,” said Pat Crank, former Wyoming attorney general and vice president of the Wyoming Game and Fish Commission, while testifying before the U.S. Senate Committee on Environment and Public Works in 2020. “They challenge any delisting of the GYE grizzly for reasons that ignore the amazing success story of the GYE bear recovery. Every challenge leads to millions of dollars pouring into their coffers.”

It’s a cycle that has repeated itself year after year. In 2012, a report compiled by the U.S. House Natural Resources Committee used data from the Department of Justice to show that the federal government defended more than 570 ESA-related lawsuits over a four-year period (2009-2012) which cost American taxpayers more than $15 million in attorney fees. This occurred during a window when all of the environmental groups mentioned above were especially active, including several that filed multiple lawsuits seeking to stop the state management of wolves in the northern Rockies.

“According to the Department of Justice, some attorneys were reimbursed up to $500 an hour and two lawyers each received more than $2 million in attorney fees from ESA cases,” the report stated. “This data provides further evidence that the ESA has become litigation driven, where money and resources are spent addressing endless, frivolous lawsuits instead of species recovery.”

Conservation Doesnt Happen in Courtrooms

Late in the 20th century and continuing into the 2000s, many Americans frowned upon environmental organizations due to their litigation-heavy reputation. So, many of those same environmental groups consciously shied away from the terms environmentalism or environmentalist and replaced them with conservation and conservationist. Among the more notable offenders are the Alliance for the Wild Rockies (no attorney list on its website), Center for Biological Diversity (46 attorneys), Defenders of Wildlife (8-10 attorneys), Earthjustice (143 attorneys), Humane Society of the United States (“dozens” of attorneys), Sierra Club (legal staff of 104) and WildEarth Guardians (legal staff of 15). It comes as no surprise that these seven groups filed almost half of the more than 570 lawsuits in the 2012 report.

The Center for Biological Diversity (CBD) based in Tucson, Arizona, topped the 2012 report’s list of “most litigious organizations” with 117 ESA-related lawsuits. CBD now proudly boasts a “Trump Tracker,” a listing of all 266 environmental lawsuits it filed against the U.S. government during the 1,461-day Trump administration. That equates to one new legal action filed every 5.5 days!

In one suit filed on June 27, 2019, CBD called on the federal government to forcibly introduce grizzlies into Texas, California, Arizona, New Mexico, Nevada, Utah, Colorado, Wyoming, Montana, Idaho, Oregon and Washington. Proposed release locations include the Grand Canyon, California’s Sierra Nevada and Montana’s Northern Continental Divide Ecosystem where there are already more than 1,000 grizzlies. On December 16, 2020, CBD filed lawsuit #255 to force grizzlies into the Cascade Mountains of Washington, even after the Department of Interior previously hosted numerous public meetings and received overwhelming local feedback against such action.

The transition to the Biden administration has not slowed this machine. In fact, it has accelerated. As of April 7, 2021, CBD publicly proclaimed it filed 43 lawsuits against the federal government—an average of one new legal action every 1.8 days!

To get an overarching picture of what is happening, the Administrative Conference of the United States, an independent federal agency that develops recommendations to improve administrative process and procedure, found 15 federal agencies paid more than $58 million in awards of attorney’s fees and other expenses under EAJA during Fiscal Year 2019. Again, that $58 million comes out of the pockets of America’s taxpayers.

A Clear Case of Stonewalling

Dating back to 2010, the U.S. Forest Service started conducting studies to formulate a plan for a future habitat enhancement project on the Helena-Lewis and Clark National Forest in west-central Montana. Called the Stonewall Vegetation Project, the goal was to treat unnaturally dense stands, reduce fire hazard, create forest resiliency and enhance wildlife habitat while improving overall forest health. Locals formed a collaborative group several years later that included government representatives, conservationists, lumber companies and other interested participants.

Relying on science, the collaborative agreed to a series of treatments to address thousands of acres of beetle-killed lodgepole stands to help reach project goals. RMEF was and remains extensively involved in the immediate area, having completed more than two dozen habitat enhancement projects over the last 15 years ranging from forest thinning to prescribed burns and other treatments that enhance wildlife habitat.

Two anti-management environmental groups, the Alliance for the Wild Rockies and Native Ecosystems Council, did not participate in the collaborative effort but instead waited for it to end and then cited the ESA to file a lawsuit against the Forest Service claiming forest management activity would endanger Canada lynx and grizzly bear populations. RMEF sought to join its collaborative partners by writing a brief in support of the project. However, a federal judge agreed with environmental groups and issued a preliminary injunction on May 30, 2017.

Halting the project before it began, the judge stated, “The Court acknowledges that Defendants have presented evidence that the Project area is susceptible to severe and intense wildfires due to elevated fuel levels caused by ‘heavy accumulations of dead and down timber.’ However, though there is the possibility of serious fire activity within the boundaries of the Project, there is no indication that this area is at risk of imminent fire activity.”

Mother Nature had other ideas. In July of 2017, lightning sparked what became known as the Park Creek Fire. Fueled by dead timber, the 18,000-acre wildfire scorched the project area, closing national forest lands and triggering evacuation orders. The Forest Service decided to go back to the drawing board to reassess the impacts of the wildfire on the project, effectively halting the suit.

Three years later, a Forest Service budget report showed the litigating environmental groups in the Stonewall case exploited the Equal Access to Justice Act to receive $100,500 in attorney fees. Specifically, the three lawyers involved in that case requested fees at rates of $290, $355 and $390 per hour. That same report also showed environmental groups, as a whole, received more than $9 million in attorney fees and settlement awards between 2011 and 2018, often at the expense of forests, wildlife, communities and American taxpayers.

The Forest Service revised the Stonewall project in 2019 and issued both a supplemental environmental impact statement and record of decision, but the same two environmental groups filed yet another lawsuit, this time in December 2020.

Is that conservation? Or is it equal access to injustice? And where do we go from here? The original intent of the EAJA was unquestionably sound, as were the reforms delivered under the Conservation, Management, and Recreation Act of 2019. The great majority of the people who benefit from EAJA do indeed receive justice and are fully deserving.

What needs to change is the cynical niche industry fueled by litigation that reaps windfalls from taxpayers picking up their attorney’s fees, then makes even more through fundraising campaigns bragging about that success. In the end, there are suers and doers. RMEF is proud to stand squarely in the second camp.