25 Nov 2009, 4:57pm
Federal forest policy Politics and politicians
by admin

Equal Access to Justice Act Abuse

Note: the following report was extracted from the November-2009 issue of the American Forest Resource Council News [here]. The author, Ann Forest Burns (her real name), 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.

Equal Access to Justice Act Abuse

by Ann Forest Burns, AFRC News, Nov 25, 2023 [here]

In a brief filed on October 30, attorneys representing defendant-intervenor Silver Creek Timber Company asked the Ninth Circuit Court of Appeals not to pay the exorbitant attorneys fees demanded by EarthJustice 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 billion in EAJA funds between 2003 and 2005. Budd-Falen found that the EarthJustice Legal Foundation and Western Environmental Law Center are seeking attorneys 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.

Karen Budd-Falen’s 4-part report is available at the Western Legacy Alliance website [here].

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

25 Nov 2009, 7:26pm
by John M.

How refreshing to see daylight shine on such activities. While most of us involved in the continuing debate about the future of the public’s lands have been hearing of this “sue for pay” operation for years, finding documented facts was difficult. I would hope the issue continues to draw both media and political attention until some changes in the system are made to allow us all to look through the window at where the money for all of these legal actions come from. It is always interesting to follow the money trail.

It is not just the lawyer fees, but also the threat of a suit is of concern. Just the threat of a suit will often make land managers back away from a perfectly solid management action because the manager can’t afford to pay court costs and pre-trial costs out of their budgets.

My thanks to everyone involved in letting the sunshine in.

26 Nov 2009, 10:09am
by bear bait

If my memory serves me, Budd-Falen found EAJA payouts in the three above mentioned USFS Regions of a Billion Dollars, not one million for the 2003-2005 period. A million dollars does not sound unreasonable for the number of suits filed and in court during that period. Correct me, Mike, if I am wrong. And I could be.

26 Nov 2009, 11:24am
by Mike

Yup, yer right. Ann’s mistake, but I fixed it. Thank you.



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