What “Billions”?

Representatives of environmental groups contacted by WyoFile said they had no objection to Lummis’ effort to make the payments for fees more transparent to the public. They did, however, express strong concerns about the accuracy of Budd-Falen’s work.

A representative of the Center for Biological Diversity, one of the environmental groups that Budd-Falen has highlighted in her report, sent her a letter in November focusing on her assertion that environmental groups were receiving “billions” in attorneys’ fees. That statement was  “not only inaccurate and defamatory, it is misleading and deceitful regarding a matter of public concern,” wrote Brent Hendricks, general counsel of the group.

John Kostyack of the National Wildlife Federation in Washington, the nation’s largest conservation organization, said Budd-Falen’s allegation that the Federation had filed 427 lawsuits over the past 15 years was not close to being accurate.

“Virtually all our cases are as part of a coalition of environmental groups, or as intervenors or amicus [friend of the court], where we are not the lead attorneys receiving fees,” he said. “We pick cases carefully, choosing cases where the violation is pretty clear.”  Sometimes, he said, the group intervenes to support – rather than challenge – the government’s decision.

WyoFile’s calculations show that the average attorneys’ fees award in each of the 1,596 cases Budd-Falen counted in her September report would have had to be $1.25 million to reach “billions” (i.e., at least $2 billion).  In a later report, Budd-Falen raised her count to 2,875 suits involving environmental groups.  Even using that number, the average award would have had to be nearly $700,000 to reach “billions.”  Budd-Falen did not respond to WyoFile requests for documentation of her “billions” assertion.  Even the Western Legacy Alliance, in a November press release, characterized Budd-Falen’s report as substantiating “nearly $10 million in payouts.”

Tracking the Dollars

No one contacted by WyoFile, however, disagrees with Budd-Falen’s assertion that the amounts paid as fees under EAJA are difficult to determine, because the government provides no central data system or tracking of these payments from the agency’s budgets.

EAJA was enacted decades ago, emerging from a Congressional concern – according to the U.S. Supreme Court – “that the Government, with its vast resources, could force citizens into acquiescing to adverse Government action, rather than vindicating their rights, simply by threatening them with costly litigation.”

The law provides that individual litigants with a net worth of less than $2 million; for-profit organizations with a net worth of less than $7 million; agricultural co-ops; and IRS-recognized tax-exempt organizations are all eligible to receive attorney’s fees under the EAJA.

The court must find that the individual or group seeking the fees prevailed in the suit, that the government’s position was not substantially justified, and that no special circumstances would make payment unjust. These restrictions are significant, requiring “more than just winning the case,” said Schneider from the agricultural law program in Arkansas.

Also, a 1996 amendment to the EAJA capped fee payments for litigation in court at $125 an hour unless the court finds that an increase for inflation is proper or that a limited availability of qualified attorneys for the proceedings justifies a higher fee.

In Budd-Falen’s September report, the only statistics that actually showed attorneys’ fees payments from EAJA was a report from the U.S. Forest Service of 44 fee payments totaling $1.7 million between 2003 and 2005. Nine of these payments went to non-environmental groups. In other Forest Service data, Budd-Falen also found fee reimbursements over the past 10 years of nearly $1 million to the Western Watersheds Project in Idaho.

Environmental Cases a Minority

A WyoFile review of a federal court database that included decisions by the U.S. appeals and district courts (but not cases settled before a decision) indicated that the vast majority in which EAJA payments were discussed were non-environmental cases.

For example, the search showed 2,307 cases involving Social Security; 1,347 cases involving veterans’ benefits; 921 cases involving labor or employment.  By contrast, a broad search designed to turn up cases where EAJA was discussed in connection with words from the names of environmental groups or titles of federal environmental laws produced only 370 cases– and many of them were not cases actually involving environmental laws or groups. Several of the cases in this search resulted in livestock or commodity groups or landowners receiving attorneys’ fees from the government.

None of the most recent 25 court of appeals decisions produced by the search resulted in an award of fees to a conservation organization, but three of them resulted in a denial of fees to such groups, including the 10th Circuit’s reversal of an award of $175,000 in fees to Biodiversity Conservation Alliance of Laramie.^[4] Two of the most recent 25 circuit court decisions, on the other hand, allowed a fees award to an agricultural group.  In 2007, the 9th Circuit affirmed an attorneys’ fees award of about $18,000 to two Montana farming corporations that had challenged the U.S. Agriculture Department’s decision on crop disaster claims.^[5] In a 2005 case, the D.C. Circuit found that a milk-marketing co-op was a “prevailing” party under the EAJA in a suit against the USDA over butterfat pricing, but reversed a portion of the $101,000 award for fees and costs because the district court had allowed a rate of $385 and $325/hour for some of the attorneys’ work.^[6]

Three federal district court cases from recent years also illustrate these points.  In a Minnesota case last year, the Sierra Club and other environmental groups successfully challenged a timber sale and road-building project in a national forest, and then sought $230,000 in fees.  The Forest Service acknowledged that the plaintiffs were “prevailing parties,” but argued that the agency’s position was substantially justified.  The court had found that the Forest Service’s decision was arbitrary and capricious, but nevertheless determined that the USFS position was reasonable, and denied the fees.^[7]

In a federal court case last year in Iowa, on the other hand, the plaintiff livestock company sued the U.S. Department of Agriculture seeking judicial review of a determination that plaintiff had illegally converted wetlands.  The plaintiff was successful and sought $57,000 in fees at $175 and $185/hour for both administrative and judicial proceedings.  The government raised several objections, arguing that fees were not allowed for the administrative proceedings and that its position was substantially justified, but the court ruled in favor of the plaintiff and awarded the fees.^[8]

In a 2005 decision by the federal district court in Billings, Mont., the Ranchers Cattlemen Action Legal Fund (R-CALF) was awarded $80,000 in attorney fees at $150/hour after suing to prevent the U.S.D.A. from relaxing a rule banning importation of bovine products from Canada. That case was dismissed in an early stage, after issuance of a preliminary injunction.^[9]

In an interview with WyoFile, Budd-Falen acknowledged that most of her research looked at cases that were decided during the Bush administration, which most observers consider to have been much more friendly to business than to the environment. Yet, Budd-Falen said her research shows that the federal government was more willing to settle with and pay fees to environmental groups than to “groups representing the property owner side or commodity side of the issue.”  She said career bureaucrats in “middle management” of the agencies have been making the settlements.

Budd-Falen does not believe that the ascendancy of a Democratic administration more sympathetic to environmental protections could turn the tables, making the EAJA more valuable to landowners or commodity groups and less needed by environmental groups.

“We have not seen any fall-off in the number of cases filed by environmental groups” since President Obama came to power, she said. “Look at their websites. They have announced they are stepping up suits about the listing of endangered species and considering global warming.”

Budd-Falen contends that many of the attorneys’ fee awards to environmental groups are granted because the agencies are unable to comply with tight procedural requirements in the laws. She argues that the fees payments drain funds the agencies could be using for programs to protect national forests, wildlife and recreation opportunities.

She also argues that it is unfair to allow groups such as Sierra Club or National Wildlife Federation to recover attorneys’ fees as “non-profit groups recognized by IRS” because their top officers earn mid-six-figure salaries and their net assets are far above the $7-million ceiling enforced against for-profit groups under EAJA.

Environmentalists Respond

John Buse, legal director for the Center for Biological Diversity, a Tucson, Ariz.-based group, said Budd-Falen has not responded to the group’s November letter. Buse charged that “Budd-Falen and the Congressional Western Caucus … are not concerned with the fees so much as with the fact that the illegal decisions that have been made by the federal agencies under environmental laws are being overturned” in lawsuits brought by environmental groups.

The National Wildlife Federation’s Kostyack agreed.

“Budd-Falen represents economic interests who would prefer that our environmental laws were not enforced,” he said. “Congress passed these laws with the idea that water would be kept clean and that wildlife would be protected and they recognized that citizen enforcement might be necessary to make that happen.”

Buse said that without the EAJA, the environmental laws passed by Congress would be eviscerated because citizens would be unable to challenge agency actions that violate those laws.