November 2009
American Forest Resource Council

Note: the following report was extracted from the November-2009 issue of the American Forest Resource Council News [here]. The author, Ann Forest Burns is Vice President, American Forest Resource Council, Portland, OR. Before turning to association work, Ann practiced timber and forestry law in Seattle for many years.  She was associate professor of forest policy and law, University of Washington College of Forest Resources. An SAF Certified Forester, she holds degrees in forest management from the University of Washington and in law from Willamette University.

In a brief filed on October 30, attorneys representing defendant-intervener Silver Creek Timber Company asked the Ninth Circuit Court of Appeals not to pay the exorbitant attorneys fees demanded by Earth Justice under the Equal Access to Justice Act (EAJA) for its work in defense of the Clinton Roadless Rule. EarthJustice is seeking $189,412 in attorney fees for filing a single answering brief and oral argument in what Silver Creek’s attorneys characterize as “a garden variety” case.

Although the EAJA was designed to protect the ability of ordinary citizens to seek redress for government misconduct, evidence filed by Silver Creek shows that EarthJustice is no ordinary citizen. It has $35,922,744 in net assets, including nearly $1.2 million invested in an offshore limited partnership and $26 million in corporate stock. The attorney fee demand seeks between $500 and $600 per hour for EarthJustice’s in-house attorneys, nearly three times the statutory rate allowed under the Act and in far excess of the prevailing rate for private attorneys doing this work.

The issue of abuse of the EAJA by well-heeled environmental organizations using taxpayer dollars to fund lawsuits against the government was the subject of a November 3 letter from the Western Congressional Caucus to U.S. Attorney Eric Holder. Twenty-three Representatives and Senators expressed concern that “organizations with a narrowly focused political agenda regarding the management of public lands in the west are abusing the Congressional intent of the EAJA.” The letter stated that since 1995, there has been a lack of Congressional oversight of EAJA expenditures and called on the Department of Justice to develop a central, publicly searchable database of organizations receiving funds and the amount paid out by the government. A copy of the letter is [here].

Recent studies by Wyoming attorney Karen Budd-Falen shows that Forest Service Regions 1, 5, and 6 paid out over $1 million in EAJA funds between 2003 and 2005. Budd-Falen found that the EarthJustice Legal Foundation and Western Environmental Law Center are seeking attorney’s fees and costs totaling $479,242.05 for their work on the recently concluded Northern California District Court case against the Forest Service planning rules. The case resulted in the agency’s withdrawal of the 2008 rules, involved no trial work and was not appealed to the Ninth Circuit.

AFRC shares the concerns of the members of the Western Caucus and the Western Legacy Alliance. We have suggested that Congress remove this incentive to litigation that has gridlocked management of our nation’s natural resources. Others have suggested reimbursements be limited to the hourly rate paid to public defenders, thus placing the defense of natural resource values on the same footing with the defense of human liberty. — Ann Forest Burns

HOST: Every year, the government hands out millions to various green organizations to support their efforts to protect the environment, but what looks like a great idea may have a thornier side. Critics say the same environmentalists receiving the help are bleeding the government dry with mountains of lawsuits paid for by -- guess who? You. William La Jeunesse is live from Los Angeles. Alright - how many lawsuits are we talking about here, and how much do they cost?

LAJEUNESSE: Well John, we're talking hundreds of lawsuits and millions of dollars paid out in legal fees from your pocket. Let's go to the graphic and I'll show you some examples.

Wild Earth Guardians - they got $140,000 from the federal government in a grant – and yet they sued the government 241 times.

The Natural Resources Defense Council - $4 million from taxpayers, sued the government 488 times.

You add in the Center for Biological Diversity and the Sierra Club, that's over 2000 cases in nine years.

Now, the group that put this stuff together, the Western Legacy Alliance, has come up with about $10 million in legal fees in just a few courts with a few groups. Why does it happen?

Well, the government has a fund. It's called the Equal Access to Justice Act. Now private corporations could not recover, but if you are a nonprofit public interest groups, even if your budget like the Sierra Club is over $50 million a year, they can collect. And in some cases we're talking $650 an hour for their attorneys.

HOST: Unbelievable. What kinds of cases are we talking about?

LAJEUNESSE: Well, in some cases, they are very procedural. The government will settle a case. Sometimes they win. Even when they settle, we have to pay. Let me give you an example. A few years ago, the Center for Biological Diversity sued the CIA because they were not buying enough hybrid cars. We paid out in that case. Another one, in one month, the Forest Guardians filed petitions to list 700 endangered species. Now, the government has 90 days to respond to that with a scientific finding. It's a volume of paper. If they miss it by one day, they get sued, and you and I have to pay.

HOST: So, the environmentalists are winning a lot of these cases.

LAJEUNESSE: They are winning the cases, John. Sometimes they are paid if they lose, but it the government does not admit guilt but simply settles because they do not want to do it -- in one case, there was a Forest Service policy that they did not want to continue. Seven attorneys from environmental groups, five environmental groups, were paid $500,000 because we didn't defend the policy but we didn't admit guilt.

Now, a Congresswoman from Wyoming, Cynthia Lummis said I need investigation. How much is being paid out of this Equal Access to Justice Fund and is it being abused because these groups, that fund was set up for poor individuals to recover when they sued the federal government. Not necessarily a $100 million organization that files suit time and time again on what many consider frivolous or procedural – not substantive cases.

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