Getting Defeated by the Environmental Litigation Gravy Train – $37 Million and Counting

KAREN BUDD-FALEN

BUDD-FALEN LAW OFFICES, LLC

 

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Getting Defeated by the Environmental Litigation Gravy Train –

$37 Million and Counting

As any sportsman, property owner, off road vehicle enthusiast, rancher, logger, or

other user of land knows, we are under assault – by Endangered Species Act (“ESA”)

listings, petitions to ban lead shot, rule making to raise grazing fees to price ranchers off

the public land, litigation to eliminate noxious weed control, bills to include mud

puddles, playa lakes and vernal pools as navigable water controlled by the federal

government – and more. What you may not know is that these attacks by radical

environmental groups are being funded with your tax dollars, working against tax

payers, land users, hunters, fishermen and property owners. We are truly funding our

own demise—$37 million in just 19 states and the District of Columbia and counting.

The amount of radical environmental litigation in the United States is staggering.

From 2000 to 2009, the Friends of the Earth filed 193 cases against the federal

government and the Environmental Defense Fund filed 173 in that same time period.

Even greater is The Wilderness Society with 214 cases, the National Wildlife Federation

with 427 cases and topping the list Sierra Club. Between 2000 and 2009, the Sierra

Club has filed 1812 cases against the federal government. All totaled, these five groups

have filed 2819 cases, all against the federal government in nine years. If you add the

“western environmental organizations” of Oregon Natural Desert Association, Western

Watersheds Project, Center for Biological Diversity and Forest (or now WildEarth)

Guardians, that number rises to 3313 cases filed against the federal government for

“enforcement” of environmental statutes in nine years.

And those are only a few of the hundreds of radical environmental groups – as

opposed to true conservation groups – who use the federal courts and administrative

processes to take land rights and land uses away from private landowners, recreationists

and federal land users. None of the money paid to these groups goes to ANY on-theground

habitat improvement projects; only to the funding of more litigation to stop land

use.

The cases and appeals filed by these radical special interest groups include

petitions to ensure that wolves, bears and other predators are never de-listed, petitions

to ban the use of lead bullets, litigation to eliminate roads and other access on public

lands, livestock grazing fee increases, and a thousand other issues that harm wildlife

populations, stop access to public lands and regulate private property. And the

federal government – through your tax dollars – is paying for this madness.

The system works like this: A radical environmental group like Defenders of

Wildlife files federal court litigation against the a federal agency complaining that the

Fish and Wildlife Service (“FWS”) failed to timely act on a petition to list a threatened or

endangered species. The environmental group cannot get the court to tell the FWS how

it should make its decision; the court can only require a “timely” decision be made. The

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FWS loses the case because it almost never makes a decision in the amount of time

required by Congress. The federal government pays the Defenders’ attorneys fees for

filing the litigation. So, not only does the FWS have to go back and remake its decision,

your tax dollars paid an environmental group to sue the FWS.

The source of the money in this type of case is called the “Judgment Fund.” The

Judgment Fund is a Congressional line-item appropriation and is used for Endangered

Species Act cases, Clean Water Act cases, and for other statutes that directly allow a

plaintiff to recover attorney fees. The Judgment Fund is supposed to only be used when

the federal agency “changes its position” because of the litigation. However, in 21% of

the cases in which attorney fees are awarded, the federal government simply agrees to

pay the radical groups fee requests—there was no determination of whether the federal

government was wrong in its legal position. Importantly there is no central data

base for tracking the payment of these fees, thus neither the taxpayers,

members of Congress nor the federal government itself knows the total

amount of taxpayer dollars spent from the Judgment Fund to fund radical

environmental groups.

Another source of funds through payment of attorneys fees system is through the

Equal Access to Justice Act (“EAJA”). An example of the litigation under that Act goes

like this: Radical environmental group Western Watersheds Project (WWP”) sues the

Bureau of Land Management (“BLM”) or Forest Service to eliminate road access to a

certain area of public land because of failure to consider enough alternatives under the

National Environmental Policy Act (“NEPA”). The agency either loses or settles the case

and agrees that it will take another look at the radical group’s request; not that the BLM

will change its mind, just consider another alternative. The federal government agrees

to pay the WWP’s attorneys fees. Rather than the money coming from the general

Treasury as do Judgment Act funds, these tax payer dollars come from the “losing”

federal agencies’ budget; thus, in this example, the BLM office’s budget. That is money

that could be used for range monitoring, NEPA compliance, road projects, timber

projects, access issues and other agency programs.

Although attorneys fees under EAJA are, by statute, supposed to be capped at

$125/hour, the latest attorney fee award for a case against the Forest Service alleging

that it failed to properly complete its rulemaking to make forest planning easier was

$650/per hour for a single attorney for a total award for one case of almost $500,000.

Additionally, under EAJA, although a “for-profit business” cannot even apply for

attorney fees if its net worth is over $7 million, but that net worth does not apply to

“non-profit, public interest” groups. Thus, the Sierra Club, with its net worth of $56

million can receive attorney fees under EAJA, but a private business cannot. Again

there is no central data system or tracking of these payments from the

agency’s budgets.

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And as ridiculous as the system sounds, the payout numbers are even more

outrageous. Working with the Western Legacy Alliance (“WLA”), the statistics we were

able to compile are shocking:

! Between 2003 to 2005, Region 1 of the Forest Service (Montana, North Dakota,

northern Idaho) paid $383,094 in EAJA fees.

! Between 2003 to 2005, Region 2 of the Forest Service (most of Wyoming, South

Dakota, Colorado, Nebraska, Oklahoma) paid $97,750 in EAJA fees.

! Between 2003 to 2005, Region 3 of the Forest Service (Arizona, New Mexico)

paid $261,289.85 in EAJA fees.

! Between 2003 to 2005, Region 4 of the Forest Service (Southern Idaho, Utah,

Nevada) paid $297,705 in EAJA fees.

! Between 2003 to 2005, Region 5 (California) of the Forest Service paid $357, 023

in EAJA fees.

! Between 2003 to 2005, Region 6 (Washington State, Oregon) of the Forest

Service paid $282,302 in EAJA fees.

! Out of the 44 total cases in which the Forest Service paid EAJA fees between

2003 and 2005, nine plaintiffs were NOT environmental groups and 35 payments

went to environmental group plaintiffs.

Even worse are the Judgment Fund statistics:

! In fiscal year 2003, the federal government made 10,595 individual payments

from the Judgment Fund to federal court plaintiffs for a price tag of

$1,081,328,420.00.

! In 2004, the federal government made 8,161 payments from the Judgment Fund

for $800,450,029.00.

! In 2005, 7,794 payments were made from the Judgment Fund for a total of

$1,074,131,007.00.

! In 2006, the federal government made 8,736 payments from the Judgment Fund

for $697,968,132.00.

! In only the first half of 2007, the federal government made 6,595 payments from

the Judgment Fund for $1,062,387,142.00.

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! In total, $4,716,264,730.00 (that is billion with a “b”) in total payments were paid

in taxpayer dollars from the Judgment Fund from 2003 through July 2007.

Certainly these were not all attorney fees payments to radical environmental

groups for environmental litigation, but this is a huge amount of tax dollars for

which there is no accounting.

After a thorough review of PACER docket sheets and court documents, just 13

radical environmental groups in 19 states and the District of Columbia have collected at

least $37 million from the federal government in approximately nine years. This only

includes attorney fees payments that were reported in court data bases; there were a

significant number of cases in which it was reported that the federal government paid

attorney fees, but the amount of tax payer money was not disclosed to the tax payers.

And the descriptions of the individual cases and amounts paid are aggravating.

As examples:

In the years of litigation over whether the National Park Service properly

attempted to restrict snowmobile use in Yellowstone National Park, the plaintiff

environmental groups were paid at least $321,996.69 and even though the State of

Wyoming and the business plaintiffs also won some of their cases, they did not receive

ANY attorneys fees for their equally winning efforts. The court records do not indicate

why Wyoming and Montana small businesses and organizations did not recover fees,

although as a technical matter, it appears that they would also have been eligible for fee

recovery.

California red and yellow-legged frogs have cost the taxpayers $445,924 just in

litigation attorneys fees. Part of the reason that California farmers in the Central Valley

have no water for their crops is because of Natural Resources Defense Council (“NRDC”)

litigation over the delta smelt, a 2 to 3 inch long minnow; the federal government has

agreed to negotiate the payment of attorney fees to the NRDC, the group responsible for

the litigation regarding the delta smelt.

Wolf litigation has, so far, cost American taxpayers $436,762 just in attorney fees,

all paid to environmental groups who sued the federal government. Litigation over the

desert tortoise, (a total of 11 cases) – a species that only spends 5% of its life above

ground – has cost the American taxpayers $702,519 just in payment of attorneys fees.

In fact, in the last 10 years, the federal government has spent more than $93 million in

taxpayer money on the desert tortoise.

The Center for Biological Diversity (“CBD”) has filed only 12 federal cases in the

State of Washington Federal District Courts. These cases include challenges under the

ESA for failure to timely respond to petitions to list the giant Palouse earthworm, the

killer whale, a butterfly species and others; a challenge EPA’s ESA section 7 consultation

with regard to certain pesticide and fungicide use on crops (although interestingly home

lawn use for the exact same chemicals was exempted from the injunction); a challenge

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to a soft wood trade agreement between U.S. and Canada; a challenge against the federal

government to protect ocean waters from threat of acidification, and others. Of the 12

cases filed, four are still pending, and of the completed eight cases, no attorneys fees

were paid in two cases. However, the total amount of attorneys fees paid for just six

cases to the CBD is $941,332.00.

In the federal court in Montana, the Alliance for the Wild Rockies and the

Defenders of Wildlife have received $570,864 in taxpayer money from the federal

government for attorney fees. In one case, the “winning attorney” boasted in one of the

court documents that he should be granted hourly fees over the amount of his normally

charged fee so that he could “donate” money to the environmental group he represented

– The Ecology Center.

The time has come to force the federal government to account for the amount of

tax payer dollars paid to radical environmental groups to stop land use and eliminate

access. Once an accounting takes place and the taxpayers see on what “causes” their

money is being spent, we can effect real change in the statutes that are eliminating true

conservation practices, public land uses and private property rights.

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