17 Oct 2009, 11:39pm
by admin

Billions Paid to Enviro Litigants


To: Interested Parties
From: Karen Budd-Falen, Budd-Falen Law Offices, L.L.C.
Date: September 15, 2009
Re: Environmental Litigation Gravy Train

Below please find a press release/Letter to the Editor regarding the amount of litigation filed by environmental organizations and the amount of attorneys fees these groups have received from the federal government for these cases. I am sure that you will be as shocked by these numbers as I have been.

Consider these facts:

* Between 2000 and 2009, Western Watersheds Project (”WWP”) filed at least 91 lawsuits in the federal district courts and at least 31 appeals in the federal appellate courts;

* Between 2000 and 2009, Forest Guardians (now known as WildEarth Guardians) filed at least 180 lawsuits in the federal district courts and at least 61 appeals in the federal appellate courts;

* Between 2000 and 2009, Center for Biological Diversity (”CBD”) filed at least 409 lawsuits in the federal district courts and at least 165 appeals in the federal appellate courts.

* In addition, over the last 15 years, the Wilderness Society has filed 149 federal court lawsuits, the Idaho Conservation League has filed 69 federal court lawsuits, the Oregon Natural Desert Association has filed 58 lawsuits, the Southern Utah Wilderness Association has filed 88 lawsuits and the National Wildlife Federation has filed 427 lawsuits.

* In total, the eight environmental groups listed above have filed at least 1596 federal court cases against the federal government.

* Every one of the groups listed above are tax exempt, non-profit organizations. Every one of those groups listed above receives attorney fees for suing the federal government from the federal government.

* These statistics do not include cases filed in the administrative courts, such as BLM administrative permit appeals before the Office of Hearings and Appeals or Forest Service administrative appeals. These statistics only include federal district court cases.

On the other end, these same environmental groups are receiving billions of federal taxpayer dollars in attorney fees for settling or “winning” cases against the federal government. Accurate statistics have not been kept by the Justice Department or the federal agencies, thus there is no accounting for the total amount of tax dollars paid, however, we were able to uncover these facts:

There are two major sources for attorney fees that can be paid to plaintiffs that “prevail” in litigation either by winning a case on the merits or by the Justice Department agreeing that the group “prevailed” in a settlement by achieving the purpose of the litigation. One source of funding 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 with other statutes that directly allow a plaintiff to recover attorney fees. There is no central data base for tracking the payment of these fees, thus neither the taxpayers, members of Congress nor the federal government knows the total amount of taxpayer dollars spent from the Judgment Fund on individual cases. The only information regarding these fees that is available is:

* 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 fiscal year 2007, the federal government made 6,595 payments from the Judgment Fund for $1,062,387,142.00.

* 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 for attorney fees and costs in cases against the federal government.

The second major source of payments to “winning” litigants against the federal government is the Equal Access to Justice Act (”EAJA”). EAJA funds are taken from the “losing” federal agencies’ budget. Thus, for example, the attorneys fees paid under EAJA come from the “losing” BLM office’s budget. That is money that could be used for range monitoring, NEPA compliance, timber projects, archeology and cultural clearances and other agency programs. Within the federal government, there is no central data system or tracking of these payments from the agency’s budgets. The only statistics we were able to compile are as follows:

* 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 (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.

We also tried to track the fees paid to environmental groups in certain federal courts. For example, in the Federal District Court for the District of Idaho, over the last ten years, WWP received a total of $999,190 in tax dollars for “reimbursement” for attorney fees and costs. Of the total cases filed by WWP in the Federal Court in Idaho, 19 were before Judge Winmill; eight of those cases resulted in a decision on the merits with WWP prevailing and with the total attorney fees being awarded of $746,184; six of the cases were settled by the federal government with a total attorney fees still being awarded of $118,000. WWP won one case but attorney fees were not paid. WWP lost six cases. There were two cases in which the documents indicated that the federal government agreed to pay attorney fees, but the payment amount was kept confidential from the public.

In my opinion, there are a lot of things wrong with this picture. The federal government is spending billions in taxpayer dollars without any accounting of where the money is going or to whom it is going. There is no oversight in spending this money, especially the money that is coming out of agency budgets that should be funding on the ground programs to protect public lands, national forests, ranchers, recreationists, wildlife and other land uses.

Nonprofit, tax exempt groups are making billions of dollars in funding; the majority of that funding is not going into programs to protect people, wildlife, plants, and animals, but to fund more law suits. Ranchers and other citizens are being forced to expend millions of their own money to intervene or participate in these lawsuits to protect their way of life when they have no chance of the same attorney fee recovery if they prevail. In fact, they are paying for both sides of the case–for their defense of their ranch and for the attorney fees for environmental groups receive to sue the federal government to get them off their land. There are also numerous cases where the federal government agrees to pay attorney fees, but the amount paid is hidden from public view.

Somewhere this has to stop and the government has to be held accountable for the money its spending.

18 Oct 2009, 1:23pm
by Bob Z.

Thank you, Karen Budd-Falen, for your wonderful research and your ability to get this information into the public media.

For years, many of us in the resource management and non-profit environmental education fields have known about this scam, but no one was aware of the magnitude of the problem or the vast enormity of the numbers involved until you began compiling them.

This is — and has been — scandalous, to be polite. Yet, for whatever reason, the media has not bothered to look at this problem. Maybe now they will.

Loggers and ranchers have been going broke for years, using their own monies to hire lawyers to fight other lawyers funded by themselves and other taxpayers with the sole intent of putting them out of business. The big fish have been eating the little fish at a sickening rate, and the public has been oblivious. Everyone pays and everyone loses — except the “non-profits” and their hired guns.

This is a money-grab by trough eaters, pure and simple, and has nothing to do with “protecting” the environment. The ESA and other regulations are simply convenient vehicles to be used for these purposes.

You are right. It needs to stop. There is too much costly pseudo-science, unethical litigation, and sleazy politics involved to continue much longer. Thanks to you, the spotlight is now on these weasels, and they need to be stopped in their tracks — unfortunately, prison time or reimbursement for their fraudulent posturings and waste of taxpayer resources are probably not going to happen by this juncture. But they at least can be stopped, and should be.

19 Oct 2009, 8:43am
by bear bait

There is an old saying that work expands to fill the time allotted to accomplish it. All that has happened, is that NGOs have created by lobby, a way to milk the taxpayer for their livelihood. And, as frosting on the cake, the NGOs also get to legislate through the courts. It is a win/win deal for them!!!

We, as a Nation, do not hold out elected officials feet to the fire, nor do we demand better from them. They are like dysentery-they run themselves. If we in any way derive a benefit, it is just serendipity making them look good.

The old Sen. Everett Dirksen saw about “a billion here and a billion there, and it adds up to some real money” is true. Money doesn’t mean much to our elected officials if it is not going to their state, their district. But a billion or more a year to Environmental lawers is a bit much. That is nothing more than a scam on the people, and a way for a submissive Congress to backdoor fund the Enviro point of view with taxpayer money. I thought the land purchases, soon sold to the Feds, was a backdoor financial scheme. The Baucus Montana Land deal with Plum Creek that codifies the NGOs Trust for Public Lands and The Nature Conservancy buying the PCT lands and then selling them to the USFS or State of Montana with a “cost of doing business fee” added was egregious and a back door funding scheme. I did not realize the extent of the legal fees extortion of the American public by the NGOs.

The Democrats who control Congress will not change the law, and will continue to use the courts to fund their Green Friends, who in turn will use the money gained to fund Congressional campaigns for those friendly and supportive of the Green Agenda. We have, essentially, an illegal funding of political campaigns by Congressional intent and lax attention to reality. Or maybe it is the old “blind eye” to an obvious injustice. Money talks and bullshit walks. They have the money, and the rest of us don’t. That is the reality. I hate my country for it. I hate my elected government for waging war on minority views with taxpayer money.

20 Oct 2009, 1:09pm
by David

Perhaps the surface management agencies should stop bending over for the miners, ranchers, loggers, and oil & gas interests so much and setting themselves up for losing lawsuits. The best protection against lawsuits prevailing is for the agencies involved to simply follow the law as it is written and not bend the rules for every monied interest.

20 Oct 2009, 7:42pm
by Mike

And yet the “surface management agencies” (where did that come from?) thumb their noses at NEPA and the ESA when it comes to fire, and the sue-happy set ignore that kind of violation completely.

Hello, David, the “monied interests” are the enviro groups sue-sue-suing to get their mitts on $billions in free dough from unaware taxpayers.

It’s funny how the Extreme Left paints a picture of corrupt agencies kowtowing to “miners, loggers and oil & gas interests” when those sectors have been bankrupted by thousands of lawsuits that have made urban lawyers rich.

But then the Extreme Left is all about stealing the Treasury bare and setting the Nation’s forests on fire, so maybe they don’t want the citizenry to know how graspingly mercenary they really are.

20 Oct 2009, 7:54pm
by Mike

Recently an environmental group filed a single brief in an appeal, and submitted a bill to EAJA for $189,000 for the strenuous labor involved in preparing it.

That kind of client abuse by attorneys ought to be grounds for disbarment.

21 Oct 2009, 6:28am
by Joanne

Thank you Karen, I’ve known about this and had wanted to know more. There are two other things going on with the abuse of the EAJA.

A few years ago, I was on the Citizen’s ‘R.A.C’ for the New Mexico BLM. I was in a conversation with the State Director of the New Mexico BLM. She said this flood of lawsuits was unleashed some 12-15 years ago when the Congress made changes to a well-intentioned law. The EAJA was intended to allow the “little guy” to have access to justice in the courts and to sue the government. But it’s gone haywire.

The other thing is that the billable hours are being done by underpaid cub attorneys. Ever see those ads about ‘doing something for the environment’ before you go off on your legal career? The enviro law firms are sweat shops. How do you think they can crank out all those suits? The law firms hire these kids for a pittance, turn around and bill the hours at the senior attorney rates.

Google the Marine Mammal lawsuit against the Navy over the use of sonar. The Navy fought back against the outrageous fee request, which generated another suit. In that suit, the enviros lost a bunch of the money they asked for. The Navy’s attorneys got the evidence that the enviro’s were billing senior and ’special knowledge’ rates for junior staff, people with no special knowledge, and even for a person who wasn’t even a lawyer.

The arrogance is unbridled. The solution is for Congress to close the loopholes in the law. That won’t happen unless the American citizen’s wake up and demand it. America will wake up when we can get the information out to them, that means finding the avenues in the media who are willing to get the word out. It means TV interviews, and documentary specials.

21 Oct 2009, 10:07am
by Bob Z.

Now we know who the biggest NGO scam artists are, and have the numbers to show the degree of their greed.

How about the legal firms that are cashing the checks? Who are they? Do they exist solely to cash in on this scam, too, or is this simply a lucrative sideline for most of them?

Is this something Glenn Beck or ACORN investigators might be interested in?



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