Doubling the National Monument Acreage
Obama’s plan to usurp local control over landscapes and what local governments can do to stop him
MEMORANDUM
TO: INTERESTED PARTIES
FROM: KAREN BUDD-FALEN, BUDD-FALEN LAW OFFICES, LLC
DATE: APRIL 23, 2010
RE: DOUBLE NATIONAL MONUMENTS?
Below please find some information that I hope you will find useful relating to local government influence of federal land management decisions, including management of the new proposal by President Obama to almost double the acreage in National Monuments.
On April 16, 2010, the Obama administration held a White House conference as a first step in its plans for the America’s Great Outdoors initiative. While this conference was touted as providing a chance for all viewpoints to be voiced in order to create a comprehensive conservation plan for public lands in the United States, an Interior Department document leaked on February 14, 2010 shows that the Obama Administration is also seeking to limit access and use to over 10 million acres of land in the West, by possibly designating 14 new National Monuments under the Antiquities Act. While the designation of National Monuments is technically supposed to only include the minimum amount of land necessary to preserve America’s “antiquities,” in reality, in recent years these designations have been significantly larger and have had a severe negative impact on the tax base on many Western communities and counties. But because National Monuments are designated under the Antiquities Act pursuant to an Executive Order by the President, there is not much legal recourse in opposing the designations themselves in federal court.
Even without Obama’s proposed designations, currently there are 100 National Monuments across the Nation, located in 27 states. President Teddy Roosevelt established the first National Monument, Devils Tower in Wyoming in 1906. President Bill Clinton created the most National Monuments, 19 plus the expansion of three existing monuments. Only Richard Nixon, Ronald Reagan and George H.W. Bush did not create any new monuments under the Antiquities Act. Over 12,091,930 acres are included in these 100 existing Monuments; President Obama’s proposal would add 10,000,000 acres more to that total.
The question is what can be done by local counties and communities to protect their economies, environment and citizens when more and more land is “saved” from the people who care about the land. There is a serious misconception by elite bureaucrats and radical environmental groups that those who live on the land are destroying the land. Being a bureaucrat in Washington D.C. does not make them an expert in land management; just as someone belonging to a radical environmental group that claims to care about the planet, does not make their loud claims valid. Who better understands the neighborhood than the people who live there–whether that neighborhood is a city block in Chicago, a farm in Iowa or a ranch in New Mexico. Local opinion and knowledge should not be discounted just because there are more people on your block in New York than on mine in Wyoming.
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Necessary Changes to the Equal Access to Justice Act
Federated Women In Timber [here]
Position Paper [here]
FEDERATED WOMEN IN TIMBER EQUAL ACCESS TO JUSTICE ACT
POSITION: Federated Women in Timber (FWIT) urges Congress to make necessary changes to the Equal Access to Justice Act (EAJA). This well intended act, which requires the federal government to pay plaintiffs’ court costs incurred in successful lawsuits against federal agencies, has become misused and abused through endless appeals and lawsuits by so-called “non-profit” environmental groups who are, technically, allowed to sue under this act and benefit financially from the results. The actions of groups such as these are holding our rural communities hostage to an uncertain future. FWIT suggests the following changes to the act to add accountability without limiting a private individual’s right to fairly protect their liberties and lives in court.
* Consider having plaintiffs pay government attorneys’ fees if they lose.
* Ensure meaningful accountability by requiring litigants to post a significant bond to cover the cost of delaying projects.
* To reduce legal fees, use the average hourly rate for the state in which the case is filed.
* Consider limits on total amounts awarded.
* Consider pro-ration of costs based on claims supported or lost.
* Add a means test for non-profits to meet the same qualifications as individuals or small businesses.
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The Good Neighbor Extravaganza
Coming April 17, 2010
Where in the world…can you have a blast discussing soup to nuts with a hydro climatologist, rodeo clown, astrophysicist, renewable energy expert, education’s whistle blower, auctioneer, three attorneys and a comedian?
In Denver! At the Good Neighbor Forum, April 17, 2010 at Casselman’s Bar and Venue 26th & Walnut
From 12:00 - 5:00 PM — Public welcome ($25.00 - GNL members free) — Doors open at 11:00 AM.
and the
Good Neighbor of the Year Recognition Dinner
Hamburger Buffet & *Benefit Auction, April 17, 2010, from 6:30 - 9:30 PM — Public welcome ($75.00 - GNL members $50.00)
Co-hosts: Colonel Mark Trostel, Lea Marlene, Scott Shuman
Master of Ceremonies - Hadley Barrett (Premier Rodeo Announcer)
Recognition of Kevin McNicholas (Owner/partner K.M. Concessions) as Good Neighbor Of The Year.
Book Signing Jim Keen Photographer, author - Great Ranches Of The West, and Colorado Rocky Mountain Wide.
Music throughout forum and evening event provided by Curt Blake (Rodeo music spinner extraordinaire)
Percentage of proceeds benefit Colorado Boys Ranch.
For details, to join GNL, and to purchase tickets click [here] or [here]
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Good Neighbor Forum Program
12:00 Scott Shuman, Auctioneer: “This will be the most exciting thing to hit downtown Denver since the Rockies made the playoffs!”
12:00 Lea Marlene, Comedian, Actress, Writer: “Come to Casselman’s Saturday! Be super cool and make reservations in advance. It’s the classy thing to do! See you then!”
12:05 Michael Shaw, Attorney: Agenda 21 - “There are a thousand points of darkness that are now wafting upon us. What are Americans supposed to do, fight a thousand battles?”
12:35 Beverly Eakman, Education’s whistle blower: “Our psychologized classrooms are producing a nation of sitting ducks.”
1:05 Leon Coffee, bullfighter/rodeo clown: “America’s economy has changed, but God’s economy never changes.”
1:20 Dr. Howard Hayden, Retired Professor of Physics, expert on renewable energy: “People will do anything to save the world… except take a course in science.”
1:50 Robert Nagel, C.U. Rothgerber Professor of Constitutional Law, Author of The Implosion of American Federalism: “The fact that so many of the hopes and fears [over federalism] should be riveted on this supremely unlikely institution is itself a discouraging sign of implosion.”
2:20 Karen Budd-Falen, Attorney exposing taxpayer funded lawsuit racket of radical environmentalists: “Non-profit tax exempt environmental organizations receive millions of tax paid dollars from the federal government, so that they can sue the federal government to challenge the legitimate use of the land by ranchers, employers and other citizens.”
2:50 Dr. David R. Legates, Associate Professor of Geography at the University of Delaware: “We are being brainwashed. This whole discussion is not a climate discussion, it is a controlling discussion. I think there are other ulterior motives. Carbon dioxide is NOT a pollutant. It is NOT harmful to life on earth. If you think it’s only carbon dioxide that drives climate, you really don’t understand how the climate system works”.
3:20 Dr. Willie Soon, Astrophysicist and geoscientist at the Solar, Stellar, and Planetary Sciences Division of the Harvard-Smithsonian Center for Astrophysics: “Saying the climate system is completely dominated by how much carbon dioxide we have in the system is crazy — it’s completely wrong.”
3:50 Michael Shaw — Closing remarks
4:20 Q & A Debate
5:00 Forum done. Reset for evening event.
6:30 Good Neighbor of the Year Recognition Dinner
Hamburger Buffet — Benefit Auction — Recognition of Kevin McNicholas as Good Neighbor of the Year.
*Auction items include: 1997 NFR/PRCA directors jacket, shotgun, antique wheelbarrel full of wine & roses, Breyer & Stone horses, CSU logo jewelry, Turkey & Antelope hunts, “Know Bull” limited edition posters (Leon Coffee will autograph) Coors Art Show posters, 1 day Veterinarian service, 2 NFR Tix, custom built hat, handmade boot mirror, “The Maunder Minimum and the Variable Sun-Earth Connection” by Willie Wei-Hock Soon & Steven H. Yaskell, “Taken By Storm” by Christopher Essex & Ross McKitrick.
Door Prizes include: “Ol’ Satan’s Hide” Poems by Quinn Griffin [Jack Kisling composed on the Intertype in 12-point Garamond and hand printed on the Chandler & Price], and “Air Con” by Ian Wishart.
The 4th Annual Good Neighbor Forum
ANNOUNCING:
The 4th Annual Good Neighbor Forum
April 17, 2010 at Casselman’s Bar & Venue - 26th & Walnut in Denver
A day of internationally known speakers…an evening of pure fun!
Doors Open 11:00 AM. Forum begins 12:00 PM sharp!
(2010 Members FREE - Non-members $25.00)
You may join online or by sending an email to: GoodNeighborLaw at msn.com
Please indicate in your email if you are attending forum: Yes___ No____.
Good Neighbor of the Year Recognition Dinner
April 17, 2010
Dinner begins 6:30 PM
(2010 Members $50.00 - Non-members $75.00)
BUY TICKETS
Seating limited. Reservations a must. Please register today at:
http://www.casselmans.com
A percentage of net proceeds will go to benefit the Colorado Boys Ranch (Youth Connect).
Download brochure [here]
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FORUM SPEAKERS INCLUDE:
Karen Budd-Falen, Attorney
Subject: Taxpayers fund environmental lawsuits — Congressional Action on Exposing Taxpayer Funded Lawsuit Racket of Radical Environmentalists
Dr. Willie Soon, Astrophysicist at the Solar, Stellar and Planetary Sciences Division of the Harvard-Smithsonian Center for Astrophysics
Subject: The Milky Way, the Sun & the CO2 monster — Avoiding CO2 Myopia
Dr. David Legates, Associate Professor at the College of Earth, Ocean, and Environment, University of Delaware and Delaware State Climatologist.
Subject: Climatology and hydrology — Avoiding CO2 Myopia
Robert F. Nagel, Attorney
Subject: Constitution - Static vs. Living
Michael Shaw, Attorney and CPA, Director of Freedom Advocates
Subject: Agenda 21
Dr. Howard Hayden, Physicist, author of The Solar Fraud: Why Solar Energy Won’t Run the World, and A Primer on CO2 and Climate
Subject: Renewable energy
Beverly K. Eakman, Educator/Author
Subject: Numbing, Dumbing America
Leon Coffee, Rodeo Clown
Subject: Political correctness and behavior modification
Book signing: Jim Keen - Author/Photographer: “Colorado Rocky Mountain Wide”, and “Great Ranches of the West”
Silent/Live Auction items will also showcase Antiques
Curt Blake (Music spinner extraordinaire!) to provide sound affects and music throughout the day/night!
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Separate from the Forum will be the Good Neighbor of the Year Recognition Dinner - which begins 6:00 PM.
Kevin McNicholas, owner/partner K.M. Concessions, will be honored as “Colorado Good Neighbor Of The Year”
Hadley Barrett, Rodeo Announcer, Master of Ceremonies
Entertainer: Lea Marlene, LA Comic, Actor, Writer
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Good Neighbor Law is a Colorado For-Profit Corporation.
Good Neighbor Law is dedicated solely to the purpose of helping people learn how to be a good neighbor.
For matters pertaining to protecting your private property rights, constitution, land and water, please go to: http://LandAndWaterUSA.com
Open EAJA Act of 2010
From: Budd-Falen Law Offices, LLC
300 East 18th Street
Post Office Box 346
Cheyenne, Wyoming 82033-0346
Call To Action
Tuesday March 2, 2010 Is the Day!!!
Western Legacy Alliance is proud to announce that on Tuesday, March 2, 2010, Congresswoman Cynthia Lummis (R-Wy) and Congresswoman Stephanie Herseth-Sandlin (D-S.Dak) will introduce the “Open EAJA Act of 2010.” This Act is a start to bringing transparency and accountability, and level the playing field in the payment of attorney fees. Research has documented that radical environmental groups are reaping millions and millions of dollars of taxpayer funding from suits against the federal government which push their radical agendas and beliefs — $42 million and counting. These groups are being paid by the federal government to sue the federal government using American taxpayer dollars.
If passed, the “Open EAJA Act of 2010″ would require the federal government to create a publicly searchable database of all attorney fees awarded under the Equal Access to Justice Act (”EAJA”) including the total amount of attorney and expert fees paid in each case, the hourly attorney fee charged and who is collecting the American taxpayers’ money. This is the first step to leveling the playing field and stopping the abuse of the legal system.
I have a short-term request and a long-term request for you.
Short-term: By Tuesday morning, March 2, 2010, please e-mail or mail a note of support for this legislation. We need as many groups and organizations as possible to support the introduction of this bill.
Long-term: Upon introduction, please contact your Congressmen and request that they co-sponsor this legislation.
Shedding light on the payment of taxpayer money under EAJA will start to bring the transparency and accountability to this system. Please help to get this bill started on the right track.
Letters of support from organizations and individuals may be sent to me for forwarding or can be sent directly to Congresswoman Lummis. Please also copy <WesternLegacyAlliance at gmail.com> on your letters.
Thank You!!
Karen Budd-Falen
February 25, 2010
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Global Warming Lawsuits Are a Cash Cow for Eco-Litigious Groups
In September we posted a “memo” [here] from Wyoming attorney Karen Budd-Falen which noted that $billions have been paid to eco-litigious groups for suing the federal government.
Thousands of lawsuits have been filed over red-tape procedures, and win, lose, or draw, the eco-suers have received windfall “fees” in outrageous amounts.
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.
In October Karen Budd-Falen followed up with another memo [here] detailing some of the more egregious fee claims requested by and paid to the eco-litigation industry and the gross, Wall Street-level compensations paid to the fatcat CEO’s of the “non-profit” eco-law firms.
Bleeding the taxpayers dry and monkey wrenching government agencies with frivolous lawsuits is a never-ending tale of horror. Karen Budd-Falen’s fifth installment is entitled “Attorney Fees Tax Dollars Have Already Decided U.S. Is Globally Warming” [here]. Some excerpts:
… the United States federal government has paid millions in tax dollars to environmental groups to litigate over global warming already. These cases are NOT about whether global warming is or is not a scientific fact, but over timelines and procedures which seem to be impossible for the federal agencies to comply with… and getting paid handsomely to do it. …
[For instance] In the California litigation regarding the Delta Smelt (the 6-inch minnow that has so adversely impacted California’s Central Valley farmers), the federal court rejected a biological opinion because it “failed to consider” climate change data. …
Once a species is listed under ESA, the Sierra Club and other environmental groups then use the National Environmental Policy Act (”NEPA”) process to further their view of global warming. …
Attorney fee awards to environmental groups to continue to sue the federal government is big business… [I]n only 18 of the 50 states, 13 environmental groups have amassed total attorney fees payments of 30 million dollars plus extracting another four million dollars from businesses, all based on payments from federal attorney fee-shifting statutes. The vast majority of these are ESA cases and there are more to come. Recently the Wild Earth Guardians filed a single petition to list 206 species under the ESA, and the CBD [Center for Biological Diversity] has filed a petition to list 225 more species. According to the CBD’s website, this is an exercise in “strategic creative litigation.” There is no way that the U.S. Fish and Wildlife Service can make a “scientific” finding on all those 431 species within the 90 day time frame mandated by the ESA, making federal district court litigation (and the payment of attorney fees) inevitable and profitable.
All of Budd-Falen’s memos on EAJA abuse may be found at the Western Legacy Alliance website [here]. The links there are temporarily broken but should be fixed very soon.
Accountability Matters
by Roni Bell Sylvester, Good Neighbor Law [here]
David Harsanyi’s column “Hide the decline . . . and more” [here and below] prompted me to write the following:
The minute an American Citizen’s paycheck goes to the government, its journey should be tracked to identify where it goes and if we approve.
If our tax payments head off in directions we disapprove, we should have the power to stop it!
Any thievery along the line should be exposed and dealt with before harm befalls anyone.
Trace-back would most likely reveal that a lion’s share of our tax payments one way or another go through a private corporation known as the Federal Reserve.
Someone needs to develop a diagram that clearly shows how eco-activist groups are linked to Hank Paulson, Goldman Sachs, Al Gore, and President Obama. Those of us in domestic resource production know they partner on birthing extractive policies out of climate change, clean water and restoration acts, Endangered Species, Law of the Sea Treaty, health care, stimulus bills, Environmental Protection Agency rulings, Department of the Interior (and more), in order to get land and water assets for themselves and for the Federal Reserve, which they loot periodically.
Each of us in the general public has the right to see the whole picture!
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, 2009 [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
The Highest Paid Arsonists/Eco-Terrorists in America
Memorandum
To: Interested Parties
From: Karen Budd-Falen, Budd-Falen Law Offices, L.L.C.
Date: September 30, 2009
Re: Follow-up to Attorney Fees/Litigation Information
(Note: see [here] for Sept. 15 memo from KBF)
I do not seem to be able to get away from reviewing the environmental group applications for attorney fees and court settlements and keep being shocked by the findings. Since my last memorandum to you:
1. Earthjustice Legal Foundation (a public interest, nonprofit legal foundation) representing Defenders of Wildlife, Sierra Club, The Wilderness Society and Vermont Natural Resources Council has filed an application for attorneys fees in a single case that took 1 year and 3 months to complete for a total of $279,711.40. For that same suit, Western Environmental Law Center (also public interest nonprofit legal foundation) representing Citizens for Better Forestry, Environmental Protection Information Center, Center for Biological Diversity, Wild West Institute, Gifford Pinchot Task Force, Idaho Sporting Congress, Friends of the Clearwater, Utah Environmental Congress, Cascadia Wildlands Project, Wild South, Klamath Kiskiyou Wildlands Center, The Lands Council, Forest Service Employees for Environmental Ethics, Wild Oregon, and Wild Earth Guardians filed an application for attorneys fees for $199,830.65. Thus in TOTAL, the nonprofit, public interest environmental plaintiffs are requesting
$479,242.05 for a single lawsuit lasting 15 months.
There were 7 attorneys representing these nonprofit public interest organizations who charged between $650.00 per hour and $300.00 per hour. These 7 attorneys claimed to have spent 930.05 total hours on the litigation. This was the case where the environmental groups sued the Forest Service over their Forest Service land use planning regulations in 2008. The judge has given the plaintiffs and the Justice Department representing the Forest Service 45 days to settle on the payment of attorneys fees. There were no intervenors from “industry” or other groups involved in the litigation. The case was resolved on the administrative record and motions for summary judgment; there was no evidentiary trial.
After the Forest Service lost the case in the Federal District Court for the Northern District of California, the Justice Department withdrew the regulations and did not appeal the case. Thus, the total attorneys fees and costs of $479,242.05 only represent work before the Federal District Court.
2. On September 14, 2009, the WildEarth Guardians sued the Federal Emergency Management Agency (“FEMA”) for issuing 16,734 insurance policies to private landowners for private structures worth approximately 2.7 billion dollars. In that litigation, the WildEarth Guardians have requested that the federal district court stop FEMA from issuing any insurance policies for any structure on any flood plain that is within the geographic range of any threatened or endangered species. One day later, the same group filed the same lawsuit against FEMA in Arizona relating to the issuance of 35,801 policies insuring structures on private property worth approximately 7.7 billion dollars. That litigation also requests the court stop FEMA from ensuring any structures on any flood plain that is within the geographic range of any threatened or endangered species. It is important to understand that it would be impossible for WildEarth Guardians to sue the individual landowners for building these structures on their private land unlessWildEarth Guardians could prove that the construction actually resulted in the death of a species listed as threatened or endangered under the Endangered Species Act. That has not been alleged in this case. Thus, the environmental group is seeking to stop private land use by stopping landowners from getting insurance for legally built structures.
3. According to the Internal Revenue Service, in 2007, the top ten executives for the environmental organizations reported the following salaries and benefits listed below. This information was prepared by David Freddoso, Commentary staff writer and was posted at: www.washingtonexaminer.com September 22, 2009, “Big Green is a Profitable Enterprise.”
Organization - Position - Salary - Retirement Plan/Deferred Compensation - Total
Environmental Defense Fund, Inc. - President - $446,072.00 - $50,102.00 - $496,174.00
World Wildlife Fund - President - $439,327.00 - $47,067.00 - $486,394.00
Natural Resources Defense Council - President - $357,651.00 - $75,308.00 - $432,959.00
Environmental Defense Fund, Inc. - Executive Director - $323,801.00 - $41,972.00 - $365.773.00
Environmental Defense Fund, Inc. - VP West Coast - $325,559.00 - $35,313.00 - $360,872.00
Nature Conservancy - Acting President - $318,507.00 - $30,866.00 - $349,373.00
National Wildlife Federation - President - $309,579.00 - $35,425.00 - $345,004.00
Pew Center on Global Climate Change - President - $311,500.00 - $23,599.00 - $335,099.00
Defenders of Wildlife - President - $254,947.00 - $57,949.00 - $312,896.00
The Wilderness Society - President - $289,750.00 - $18,715.00 - $308,465.00
Billions Paid to Enviro Litigants
Memorandum
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.
BLM Permanently Drops Fuels Management, Grazing Categorical Exclusions
Secret deal includes irregular payoff to enviro lawyers
MEMORANDUM
TO: LIVESTOCK INDUSTRY AND INTERESTED PARTIES
FROM: KAREN BUDD FALEN, BUDD-FALEN LAW OFFICES, LLC, Cheyenne, Wyoming
DATE: SEPTEMBER 1, 2009
RE: BUREAU OF LAND MANAGEMENT CATEGORICAL EXCLUSION INSTRUCTION MEMORANDUM BASED UPON WESTERN WATERSHEDS PROJECT V. LANE
Below please find a press release/letter to the editor regarding the Bureau of Land Management’s Instruction Memorandum dated August 21, 2009 discontinuing the use of Categorical Exclusions for term grazing permit renewal in all cases.
INTRODUCTION
On August 21, 2009, the Bureau of Land Management (”BLM”) issued an instruction memorandum (”IM”) which “immediately and permanently” stopped all BLM field offices from issuing term grazing permit renewals based upon categorical exclusions (”CE”). According to the IM, the nation-wide discontinuance of the use of CEs for term grazing permit renewal was required by a settlement agreement in an Idaho Federal District Court case entitled Western Watersheds Project v. Lane, No. 07-cv-394-BLW. Although according to the court’s website, the settlement agreement was “restricted,” this firm was able to acquire a copy. The terms of the settlement agreement mandate a discontinuance of the use of CEs for term grazing permit renewals nationwide regardless of circumstance. Additionally, the U.S. Justice Department paid Western Watersheds Project (”WWP”) $43,000 in fees pursuant to the Equal Access to Justice Act.
PROBLEMS WITH THE LITIGATION AND SETTLEMENT
There are several things about this settlement agreement which should concern the livestock industry. First, there were no intervenors in this litigation, thus no one to advocate the livestock industry’s points, legal arguments and concerns. While I agree that money is tight, and certainly no one can guarantee that there would have been a different outcome if ranchers were represented in the case, it may have made a difference and certainly the outcome would not have been worse.
Second, there will be no use of categorical exclusions to renew term grazing permits, regardless of the factual circumstances. That will amount to significantly more paperwork for the BLM. I guarantee, however, that the WWP will not stop here. I have been involved in a significant number of cases related to BLM permits where the environmental groups argue that if the NEPA compliance is not completed before the term permit expires, grazing should be eliminated from the allotment. This would be an untenable position for permittees. The BLM admits that it is woefully behind completing its NEPA compliance paperwork, even on the smallest of permits and even when the rangeland conditions are in excellent condition. However, WWP and other environmental groups are arguing that if the NEPA paperwork is not completed before the end of the ten year term, livestock grazing has to be eliminated from the allotment until NEPA is done. Do not kid yourselves, it is not the compliance with NEPA that the environmental groups want; it is the elimination of livestock grazing.
Third, the restriction on acquiring the settlement agreement is concerning. Settlement agreements, particularly those involving an entire program of the federal government as well as attorney fees paid from agency budgets, should not be restricted from public view particularly in an administration that pledged more “transparency and an open government.”
Finally, WWP was paid $43,000 for this case. This case was not “won,” but settled. The settlement agreement specifically states that it is based upon compromise and that there is no admission by any party to any fact or claim. The attorney fees payment was premised upon the Equal Access to Justice Act (”EAJA”). EAJA only applies in those cases with a “prevailing party” and when the federal government’s position is “not substantially justified.” The EAJA requirements are directly contrary to the language in the settlement agreement, but the federal government voluntarily paid $43,000 from the BLM’s budget to WWP. If anything, those funds should be used for the additional NEPA compliance which the settlement agreement and the IM now require.
