Obstructing Management: The Equal Access to Justice Act

Obstructing Management: The Equal Access to Justice Act

Earthjustice cites their slogan “Because the Earth needs a good lawyer” as justification for continuing legal fights to keep grizzly bears on the Endangered Species List. That group and others like it routinely claim to speak for wild places and wild creatures.

In contrast, public servants at state and federal agencies often feel ensnared in the environmentalists’ lawsuits. They say those self-proclaimed “good lawyers” too often waste taxpayers’ time and money, and ultimately hurt the natural resources they claim to protect.

Nearly 20 years ago, for example, the late Jack Ward Thomas, 13th chief of the U.S. Forest Service, warned that some advocates regularly subvert the common good. “Most hardcore environmentalists demonstrate little concern with the social/economic consequences of their victories,” Thomas wrote in 2001. “Some, figuratively, continue to wander the old battlefields ‘bayonetting the wounded’ via challenges to even minor management activities.”

In fact, when “the Earth’s lawyers” prevail in those court challenges, they often benefit financially from their lawsuits by using the Equal Access to Justice Act to make the federal government reimburse their legal expenses.

The EAJA, however, was not created to compensate well-funded advocacy groups like Earthjustice, which has the means to hire “independent scientists,” staff offices in 14 regions, and employ 133 full-time lawyers. MeatEater contacted Earthjustice’s media office several times by email and phone seeking comment for this article, but Earthjustice did not respond.

The EAJA was passed in 1980 to make the federal government more responsive and responsible to citizens; and ensure military veterans, Social Security recipients, small businesses and others of modest means could afford legal help should agencies cause harm to them. Sen. Edward Kennedy, D-Mass, sponsored a 1975 bill that became the EAJA in 1980. In testimony on Kennedy’s bill, a witness presciently told him: “I know it is not the intent of your bill to [pay the Sierra Club or the Environmental Defense Fund]. … You’re talking about giving citizens of all stripes the ability to test their notions and have their points of view heard.”

Even so, environmentalist groups since found the EAJA pays well when litigating provisions of the Endangered Species Act that provide a never-ending “license to sue.”

Earthjustice and Advocates for the West have represented groups like the Sierra Club, Natural Resources Defense Council, Western Watersheds Project, Great Bear Foundation, Alliance for the Wild Rockies and the Jackson Hole Conservation Alliance in opposing grizzly delisting since 2007. More recently, Earthjustice also represented the Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity and National Parks Conservation Association to halt efforts to reopen grizzly hunts in Idaho and Wyoming.

Energy Drains
Chris Servheen, a professor emeritus at the University of Montana in Missoula, served as the U.S. Fish and Wildlife Service’s grizzly bear recovery coordinator from 1981 through 2016. He helped remove the Yellowstone grizzly population from the endangered species list in 2007, only to see environmentalist groups successfully sue to re-list it in 2009.

Servheen said he spent no time on legal issues his first 26 years in that post. He estimates, however, that he spent up to 40 percent of his time after 2007 helping government lawyers answer legal challenges. That included accusations that agency biologists didn’t adequately address the grizzly population’s genetic diversity, nor account for declines in cutthroat trout and whitebark pine nuts in assessing the bears’ dietary needs.

“We’re regularly accused of data manipulation, but only by the most extreme environmental groups,” Servheen said. “They usually want to do their own analyses, and they call these ‘independent scientist’ reviews. Independent of what? That’s the question.”

After the 2007 delisting, Earthjustice and its clients claimed help from more than 270 scientists to keep grizzlies on the ESL. Servheen said each time the court ordered government agencies to answer the groups’ claims, agency biologists complied. Did the follow-up research change scientific understanding of grizzly genetics or the bear’s dietary needs?

“It didn’t change our original conclusions; it just enhanced evidence supporting our original conclusions,” Servheen said. “We already knew declines in whitebark pine nuts didn’t threaten grizzlies, and the population’s existing genetics and genetic diversity aren’t threats to the population. Substantive evidence shows the diversity is sufficient to maintain healthy genetics for the long term. There’s no scientific basis that separated populations are somehow at risk genetically. And there won’t be any change in the available genetic information, or the conclusion that existing genetics don’t threaten the bears.”

But because Earthjustice prevailed in federal court last fall when U.S. District Judge Dana Christensen shut down the grizzly hunts, the litigants are expected to seek reimbursement of their legal fees. How much can they recoup? Christopher Segal, an attorney at the Law Offices of Lowell E. Baier in Washington, D.C., estimates the award will likely total at least $250,000, but notes that EAJA and Endangered Species Act payouts are notoriously difficult to track.

Crippling Conservation
Segal’s boss, Lowell Baier, is a historian, political scientist and lifelong conservationist who’s one of the nation’s foremost experts in environmental litigation. He has worked since 2010 to reform the EAJA in hopes of apprising the public of the act’s payout amounts and their recipients’ identities.

Baier has won the National Wildlife Federation’s J. N. “Ding” Darling Conservation Award (2016), the Association of Fish and Wildlife Agencies’ Citizen Conservationist Award (2013), Outdoor Life magazine’s Conservationist of the Year Award (2010) and the National Fish and Wildlife Foundation’s Conservationist of the Year Award (2008).

Baier’s 2016 book, “Inside the Equal Access to Justice Act,” argues that environmental litigation has become an expensive national policy issue that causes harmful gridlock. Baier thinks unintended provisions of the EAJA give environmental groups financial incentives to sue federal regulatory and land management agencies. He also thinks those efforts cripple proactive, cooperative, bipartisan conservation efforts.

Baier and Segal favor EAJA reforms, not repeal. They just want the government to detail the specific totals and recipients of EAJA and ESA awards, information that’s proven elusive since Congress eliminated reporting requirements in 1995. In addition, courts sometimes seal settlements, further hampering full accountings.

Still, some clues are available. For instance, the House Natural Resources Committee directed the Department of Justice in 2012 to release a database of ESA cases active from Oct. 1, 2009, through mid-2012. After analyzing the information, the law offices of Karen Budd-Falen in Cheyenne, Wyoming, identified 573 cases, of which 489 were filed by environmental organizations. Of those, 183 cases awarded attorneys’ fees, totaling $52.5 million.

Baier, meanwhile, studied the work of 23 environmental litigants in hopes of detailing how much they received from cases settled from Sept. 1, 2009, to Aug. 31, 2013. Even without information from sealed cases and administrative proceedings, Baier found EAJA payments totaled $14.3 million those four years, a $3.6 million annual average. Most of the awards came from lawsuits filed against the U.S. Department of the Interior. But when Baier examined the 23 environmental groups’ tax returns for those years, the attorneys’ fees they claimed totaled $9.1 million, or $5.2 million less than what the courts awarded.

“Discrepancies like those come from a lack of transparency,” Segal said. “Our [EAJA] reform efforts are based on the concept that sunlight is the best disinfectant. When the public knows what these lawsuits involve, who’s filing them, and how much they’re awarded, the worst offenders like the Center for Biological Diversity might be more cautious. They don’t want bad publicity. That kind of information hasn’t been consistently recorded or tracked for 25 years. Even when the secretary of the Interior Department has asked for reports on settlement awards, no one could come up with the information.”

Reforms on the Horizon
Baier and Segal’s efforts to reform the EAJA paid off in February when the U.S. Senate and House of Representatives passed S. 47, the John D. Dingell Jr. Conservation, Management, and Recreation Act. The act included the Open Book on Equal Access to Justice provision, and awaits President Trump’s signature.

The “Open Book” provision requires the federal government to annually report the amounts of fees and other expenses awarded under the EAJA, regardless of whether the settlement is sealed or subject to nondisclosure provisions. It also requires the information to be publicly accessible through a searchable online database that identifies the parties receiving awards.

“After all these years, we’ll finally have transparency and a complete accounting of the litigants’ attorneys’ fees,” Segal predicted.

Will that be enough to end the eternal litigation bedeviling wildlife and land management agencies? It’s too soon to know, but ongoing lawsuits over the Yellowstone region’s grizzly bears provide examples of why reforms are vital. Segal said groups not only benefit financially from legal challenges, but they usually do little or nothing for the nation’s natural resources nor taxpayers who own and pay for them.

Segal said litigants use the Endangered Species Act and other legislative mandates to make it nearly impossible for agencies to perform their public services. As Baier notes in his book: “Legislative mandates are so complex, and litigation so prevalent, that [U.S.] Forest managers often overplan in futile attempts to litigation-proof their projects. The situation has become so severe that litigation exceeds all other considerations in project planning.”

Environmentalist groups have also capitalized on the fact that some legislative requirements can’t be satisfied. In 1982, nine years after the ESA was enacted, Jack Ward Thomas said the U.S. Forest Service was physically and financially unable to collect adequate biological data for every listed species in every forest. The work simply couldn’t be done “frequently enough and with enough precision to be meaningful,” Thomas wrote.

And yet courts still demand it, which makes forest management and endangered species policies “vastly more expensive to create and easier to challenge in court,” Segal said.

Segal and Baier also note that lawsuit awards grossly understate the full, actual costs and impacts of endless litigation. After all, it’s hard to estimate the lost value of agency staff who spend time and agency money on legal matters instead of on research, hiking trails, campgrounds or law enforcement involving fish and wildlife.

Petrified Thinking
After the USFWS resumed grizzly delisting efforts in 2014 when confirming the bear’s omnivorous diet could handle declines in whitebark pine nuts, Servheen was clearly frustrated by the redundant research and opponents’ fixed attitudes.

“Categorizing [environmentalist groups] into the ‘antihunting’ box isn’t accurate, but most groups that litigate don’t favor hunting anything,” Servheen said. “Most are stuck in the belief that grizzlies remain threatened.”

Such frustrations also hurt morale and hasten agency budget problems. In Baier’s book, for example, two former USFWS directors—Steve Williams (2002-2005) and Dale Hall (2005-2009)—estimated agency personnel costs at $5 for every $1 awarded to the litigants’ attorney fees. Thus, when Baier added those fees to agency expenses and Department of Justice (government attorneys) costs, the actual amount of EAJA awards was nearly eight times what litigants received.

If that’s the case, Baier’s review of those 2009-2013 awards to 23 environmental groups actually cost taxpayers at least $112 million, not the $14.3 million he documented. Likewise, if current legal challenges to grizzly management total $250,000 in awards, as Segal estimated, the true cost to taxpayers is nearly $2 million.

Segal hopes the Open Book on Equal Access to Justice provisions curtail such costs.

“It’s safe to say that agency biologists, conservation officers and other agency staff have better ways to spend their time than what the EAJA allowed in recent years,” Segal said. “I think they’d rather manage fish and wildlife and administer projects the American people value on their public lands.”

Feature image via Captured Creative.

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