NCBA Op-Ed: Vicious cycle of litigation paid for by taxpayers

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Editor's note: The following article was written by the Public Lands Council and reprinted from the Nevada Rancher magazine.

Recently, the Public Lands Council (PLC) has had witnesses testifying before Congress on some of our priority legislation, including the Grazing Improvement Act and the Catastrophic Wildfire Prevention Act. Not surprisingly, the topic of taxpayerfunded litigation by radical environmental groups came up at each of these hearings. Representative Raúl Grijalva, D-Ariz., Ranking Member of the Subcommittee on Public Lands and Environmental Regulation, repeatedly challenged our witness’ statements regarding the millions of dollars in attorneys’ fees that are going straight into radical environmental groups’ coffers when they litigate the government.

Grijalva’s challenges were not difficult to refute, and in fact provided us an opportunity to shed light on the vicious cycle of litigation that is happening at the expense of taxpayers, ranching and other industries.

Payments from taxpayers to litigators against the federal government come from two primary sources: agency budgets, by way of the Equal Access to Justice Act (EAJA), and the Judgment Fund. EAJA was enacted in 1980 with the best of intentions — to give individuals and small businesses protection from the heavy hand of the federal government by reimbursing their costs when they prevail in court against the government.

Prior to EAJA, the Judgment Fund was established (1956) to pay court judgments and settlements in cases brought against the federal government. It is still in place today, and covers payments not made under EAJA.

No tracking or reporting of payments is performed under either EAJA or the Judgment Fund—creating a perfect environment for radical groups to abuse these fee-shifting statutes. They found a loophole in EAJA: the law prohibits payments to individuals or businesses worth more than $7 million—but there’s no limit on nonprofits!

Multi-million dollar groups like Center for Biological Diversity (CBD), WildEarth Guardians (WEG) and Western Watersheds Project (WWP) take full advantage of this oversight. These groups have made a veritable business model out of driving their anti-agriculture, anti-production agenda on our dime.

According to research by attorney Karen Budd-Falen in 2011, 12 environmental groups alone had filed more than 3,300 lawsuits over the previous decade, recovering over $37 million in EAJA funds. This figure is a conservative estimate, she says, as – again—there exists no tracking mechanism by the government. It also says nothing of their claims under the Judgment Fund.

Since her 2011 report, Budd-Falen has tracked fee requests of CBD and WEG and found that almost $2 million has been awarded to them in that short time. She also discovered that WWP has claimed at least $1.6 million in attorneys’ fees since 2000. This contrasts nicely with Grijalva’s assertion that WWP has “received a total of $43,000 in attorneys’ fees over the past 15 years.” And Budd-Falen’s research on WWP is far from done: she has so far only counted fees for 92 of 130 cases, many of them sealed from public viewing.

How do these enviro-litigators pull it off? It’s a business model — a group challenges an agency decision, such as a livestock grazing decision — likely on a minor, process-based point.

The rancher, with his livelihood at stake, may join the government to defend the grazing decision. He pays attorneys’ and other legal fees out of his own pockets to protect his business.

Meanwhile, his very own tax dollars are going to the environmental extremists who brought the suit. The extremists can get paid even if they lose the case but prevail on certain points.

The rancher is effectively funding his own demise, and meanwhile the agency’s budget is further strained, making it even harder to complete proper paperwork on future decisions. The cycle continues.

With no government accounting of this abuse, it’s sure to grow. This is why PLC supports legislation such as the Judgment Fund Transparency Act (H.R. 317), introduced by Rep. Cory Gardner, R-Colo.

It would require tracking and reporting Judgment Fund payments. We are currently working with Congress to introduce similar legislation for EAJA. Shedding light on these payouts will help—but we want to go even further.

Last session, we supported the Government Litigation Savings Act, introduced by Rep. Cynthia Lummis, R-Wyo., which would have not only tracked payments, but disqualified nonprofits whose net worth exceeds $7 million.

The legislation required parties to have a direct monetary interest in the federal government’s action in order to be eligible for payment and capped the exorbitant attorneys’ fees these groups claim to be owed, which are sometimes as much as $700 per hour. Unfortunately, the “nonpartisan” Congressional Budget Office (CBO) gave the bill a bad score, claiming its implementation would be too costly. How’s that for common sense!

Even though right and wrong, logic and illogic, and fair and unfair often seem to lose their definitions in Washington, we must not give up the fight for what we know to be the right path. We will keep holding up the good work of soldiers like Karen Budd-Falen for the world to see, and pursuing every means we can to put a stop to this rampant abuse of American taxpayers and our nation’s producers.



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