WWP fails to expand scope of EAJA

Nov 5, 2010

The Idaho-based anti-grazing group Western Watersheds Project (WWP) is notorious among public lands ranchers for contesting the renewal of grazing permits in court. The group has challenged the re-issuance of hundreds of permits to ranchers throughout the West by entering into litigation with the issuing government agency, typically the Bureau of Land Manaagement (BLM( or U.S Forest Service.

But as of early October, one thing is certain. When WWP appeals a grazing permit renewal in court, they will have to foot the bill for their own legal fees.

On Oct. 12, the 9th Circuit Court of Appeals definitively denied a petition filed by WWP requesting attorney’s fees through the Equal Access to Justice Act (EAJA) in a case challenging permit renewal. The court ruled that EAJA is restricted in that it does not allow a litigant to shift legal fees to the government in a case where adjudication is for the purpose of granting or renewing a license. The court acknowledged that WWP’s motive in the case was to enforce environmental law, and that WWP did not seek possession of the permit for itself. However, it determined that because the suit originated in an issue of permit renewal, and because a grazing permit is a license, such cases must fall outside the scope of EAJA.

EAJA was enacted in 1980 to help level the legal playing field between private entities and the federal government by allowing an award of attorney’s fees to private parties who prevailed against the government in court.

Yet environmental activist groups have routinely taken to using EAJA to pay for litigation against government agencies over procedural issues, and have frequently received EAJA reimbursement for cases that are settled, not won. According to research undertaken by attorney Karen Budd-Falen on behalf of the Western Legacy Alliance, the amount of EAJA dollars paid out to activist groups in recent years has been substantial.

According to the Western Legacy Alliance, "In just six short years, non-profit environmental groups filed more than 1,500 lawsuits, and in turn, the federal government paid out an astronomical $4.7 billion in taxpayer dollars in judgments, settlements and legal fees in cases against the U.S. government."

Due to the widespread use of EAJA to bankroll the litigation efforts of anti-grazing groups, the livestock industry has strongly supported legislation that would rein in EAJA’s use. H.R. 4717, the Open EAJA Act of 2010, sponsored by Rep. Cynthia Lummis, R-WY, is a bill that seeks government accountability in the doling out of EAJA dollars to applicants. It has been referred to committee and is awaiting report.

In light of the concerns about the abuse of EAJA by environmental groups, the recent ruling will likely be viewed as a victory in the livestock sector. It means that WWP and similarly-minded groups will have to pay their own way when litigating government agencies over grazing permit renewal. Given the number of such cases WWP has engaged in, the expense could be substantial. According to its website, WWP is currently contesting the reissuing of over 70 permits in northern Utah alone.

Parties concerned with potential abuse of EAJA will also welcome the recent ruling because it blocks an expansion of EAJA’s scope that was sought by WWP. The court’s opinion acknowledged that WWP’s interpretation of statute would involve an illegal expansion of EAJA, explaining:

"Accepting Western Watersheds’ interpretation of the EAJA … could … open a fairly straightforward loophole in the EAJA’s waiver of the sovereign immunity of the United States."

It is open to speculation how the ruling will affect WWP’s litigation strategy for challenging permit renewal. Given the group’s history, however, it will not be surprising if WWP files for appeal of the decision, either by asking for a full en banc rehearing in the 9 Circuit, or by submitting the appeal to the Supreme Court.

The definitive nature of the ruling, however, may limit WWP’s chances for getting the decision reversed. According to 9 Circuit opinion, "Western Watersheds’ cases offer little, if any, support for its argument." — Andy Rieber, WLJ Correspondent