LITIGATION:

Lawsuit abuse charge by Western lawmakers enrages enviros

Poor government oversight has allowed advocacy groups to squander taxpayer money on frivolous lawsuits that drain the budgets of federal land management agencies without the knowledge of the public or Congress, a group of Western lawmakers told Attorney General Eric Holder in a letter released this week.

Specifically, members of the Congressional Western Caucus charge that environmental groups have used the Equal Access to Justice Act to win back millions of dollars in attorney fees for lawsuits filed against the Forest Service and other federal agencies.

Caucus members have "great concern about the apparent abuse of EAJA by certain organizations, and the lack of accountability and transparency in the operation and distribution of funds under EAJA that have contributed to this abuse," says the letter, signed by 23 Republican senators and representatives.

But environmental groups, while endorsing recommendations for greater public access to EAJA records, said the research supporting the claims, done by a Wyoming lawyer and former Interior special assistant in the Reagan administration, is spurious and greatly misrepresents the share of funding they receive under the act and a similar program called the Justice Fund.

Attempts to reach the attorney, Karen Budd-Falen, through her Cheyenne office were unsuccessful. An assistant said she was out of town and unable to answer questions.

Budd-Falen's research, however, remains posted on the Web site of the Idaho-based Western Legacy Alliance, which helped fund her work and lobbied the Congressional Western Caucus to investigate. Alliance member Jeff Faulkner, in a statement, went so far as to accuse environmentalists of "shaking down federal government programs so they can access taxpayer dollars to fund their radical agendas."

But Kieran Suckling, executive director of the Center for Biological Diversity, one of eight groups targeted by Budd-Falen and the Congressional Western Caucus, said the claims against the nonprofit groups are outrageous. Among other things, Suckling said the letter's claim of EAJA abuse by environmental groups "is sheer nonsense, as it fails to cite even a single example of abuse."

Moreover, the Western caucus's attempt to single out environmental groups' use of EAJA reimbursements ignores the fact that that law has awarded even greater sums to other plaintiffs whose claims against the government had nothing to do with environmental concerns.

Well-intentioned law

Congress passed the Equal Access to Justice Act nearly 30 years ago to allow individuals, small businesses or public interest groups to be reimbursed for the cost of attorneys that represent them in cases of alleged wrongdoing by the federal government.

The law allows average citizens and nonprofit groups to hold federal agencies accountable for violations of environmental laws such as the Clean Water Act and Endangered Species Act, but also to provide greater government accountability in a number of other policy spheres, including copyright and trademark infringement, disability and retirement pay, and fair housing.

But ever since Congress lifted reporting requirements for EAJA payments in 1995, the public has been left in the dark about how much money groups have received under the act and for which cases, the letter says.

"We have no clue as to what is actually being spent on this program," said Utah Rep. Rob Bishop (R), chairman of the CWC and ranking member of the Natural Resources Subcommittee on National Parks, Forests and Public Lands. "The sad part is this has become a cottage industry that groups use to fund further lawsuits against the government."

Under the guise of "public interest," groups intent on sealing off Western lands to ranchers and energy companies have abused EAJA to further their narrow political agendas, the letter states.

"EAJA is an important tool for protecting citizens' rights against the federal government," the letter says. "Sadly, its abuse undoubtedly has far reaching consequences on both public lands management decisions and for all American taxpayers."

Research cited by the letter found $4.7 billion was awarded from the U.S. Treasury's Justice Fund from 2003 to July 2007, though it is unclear how much of those funds went to environmental groups. The same memo identifies less than $1.7 million in EAJA payments to environmental groups from the Forest Service from 2003 to 2005.

The CWC letter requests information on how the Justice Department keeps records of EAJA disbursements and urges the agency to bring the act "back into the sunshine" by building a searchable public database listing the names of organizations that have received reimbursements for attorney fees and for which cases.

Bishop said the caucus has yet to receive a response from Justice but that members are prepared to introduce legislation requiring greater disclosure of EAJA payments.

"The entire caucus is united on this front," Bishop said.

A Justice Department spokesperson could not confirm whether Holder had received the letter and did not respond to questions about the department's EAJA record keeping.

Spotty evidence?

While supporting the call for greater disclosure of EAJA disbursements, environmental groups rejected charges that they have abused the act in order to siphon money from the federal government.

"There is absolutely nothing abusive about the EAJA paying fees to attorneys who overturn illegal government decisions," said Suckling of CBD. "That is exactly what the law was created for."

EAJA reimbursements are awarded only if a group wins a lawsuit against the government, Suckling noted. The law stipulates that plaintiffs receive $125 per attorney hour from the government when they win a case. Groups also receive money from the Treasury Department's Justice Fund for cases in which DOJ finds they have "prevailed," or achieved the purpose of the litigation.

John Kostyack, executive director of the National Wildlife Federation's conservation and global warming programs, said EAJA is a critical mechanism for nonprofit groups to ensure the government enforces laws protecting natural resources and wildlife. But, he said, advocacy groups are hardly padding their coffers with government money earned from lawsuits.

The amount of money that environmental groups receive under EAJA and the Justice Fund is meager compared to groups' overall operating costs, he said. NWF took in $88 million in total revenue in 2008, Kostyack said, so EAJA "certainly doesn't fund continuation of our legal efforts."

Kostyack said he was troubled by claims in Budd-Falen's memo that he says bend the truth and others that are patently false. For example, the memo's claim that NWF has filed 427 lawsuits over the last 15 years is a gross overestimate, by between 200 and 300 cases.

Fighting back

An attorney for the Center for Biological Diversity on Tuesday sent a letter to Budd-Falen and the Western Legacy Alliance in Idaho, which published the Sept. 15 memo on its Web site, warning that its accusations are misleading and defamatory and demanding its removal from any Web sites or publications.

Among other things, CBD strongly refutes the memo's claim that it and seven other environmental organizations received "billions" of dollars from EAJA, the letter from attorney Brent Hendricks states. The letter further states that the distribution of false claims about the groups' use of EAJA money is "injurious to our reputation, and constitutes 'malice' in its reckless disregard for the truth."

In fact, Hendricks said, the $4.7 billion in Judgment Fund money awarded by the government came from claims involving 96 federal statutes, only seven of which are environmental.

Most of the money was awarded for cases involving the Federal Tort Claims Act, Foreign Claims Act, Fair Labor Standards Act and Religious Freedom Restoration Act, the letter states.

"To claim that eight environmental organizations -- or even all environmental groups in the country -- have received 'billions' in attorney fees is not only inaccurate and defamatory, it is misleading and deceitful regarding a matter of public concern," the CBD letter says.

A Western Legacy Alliance spokeswoman said the group received Hendricks' letter but would not remove Budd-Falen's memos from its Web site because they were "opinion editorials" and were considered a form of free speech.

"She's being very conservative in just looking at specific cases," said Kassy Perry, a spokeswoman for the group. "Everything she wrote is validated in the research."

The alliance is funded by its members, most of them ranchers, and does not claim nonprofit status, Perry said.

As for the Congressional Western Caucus, Bishop said in a statement that its members remain concerned "that there may be abuse, but no one can know the truth about how EAJA operates until we begin to shed light on a program that has operated without Congressional oversight since 1995. Taxpayers deserve to know how their hard earned tax dollars are being spent."

Want to read more stories like this?

E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.

Click here to start a free trial to E&E -- the best way to track policy and markets.