Putting “equal” back in Equal Access to Justice Act

Nov 25, 2011

The bill to return the Equal Access to Justice Act (EAJA) to its original intent passed through the House of Representatives Judiciary Committee in mid-November, bringing it one step closer to the president’s desk, and one step closer to holding activists financially accountable.

EAJA is a historic law that allows plaintiffs to recover attorney fees and other expenses when they prevail in lawsuits against the government. It was intended for retirees, veterans, small businesses or average citizens who need help finding and paying for a lawyer to correct errors in their earned benefits or to remedy mistaken penalties imposed by federal agencies.

In recent years, wealthy animal rights and environmental advocacy groups have used lawsuits to push their agendas, often at the expense of agriculture. The groups then use EAJA to recoup legal costs.

“We respect the original intent of EAJA. Unfortunately, over the past couple of decades, radical groups have abused the program to target livestock producers by challenging federal government land and resource use decisions in court. Livestock producers end up paying multiple times over to defend themselves while radical environmentalists pocket millions of dollars,” said Dustin Van Liew, National Cattlemen’s Beef Association director of federal lands and Public Lands Council executive director.

A recent lawsuit over the Endangered Species Act (ESA) between the U.S. Fish and Wildlife Service (FWS) and two environmental groups, revolving primarily around procedural issues as opposed to a true ESA issue, ended with FWS reaching a settlement and paying attorney fees through EAJA to the wealthy environmen tal groups.

“This legislation will protect livestock producers from funding their own demise, will prevent taxpayer dollars from lining the pockets of wealthy environmental extremists and will ensure Congress and the American people know how much is spent on EAJA and where those funds are going,” Van Liew said.

The purpose of the legislation is to bring accountability and transparency for the payment of attorney fees to the American public.

Since 1995, there has been no accounting of attorney fees, money that, by the smallest of estimates, is in the hundreds of millions of dollars, according to Karen Budd- Falen, with Budd-Falen Law Offices.

“Court documents, including settlement agreements and voluntary consent decrees, have shown that literally tens of millions of dollars have been pouring into the coffers of multimillionaire groups like the Sierra Club, the Defenders of Wildlife, the Center for Biological Diversity and countless others,” Falen said.

In addition to the requirements for transparency and accounting, the bill would prohibit non-profit organizations with a net worth exceeding $7 million from filing for EAJA funds. EAJA filers would be required to show a “direct and personal monetary interest” in the action to be eligible for payment and a cap would be placed on attorney fees involving environmental

activists’ claims, according to Falen.

Currently, individuals are eligible to use EAJA if their net worth does not exceed $2 million. Businesses are eligible provided their net worth does not exceed $7 million.

H.R. 1996 would make EAJA consistent with the 205 other federal fee shifting statutes, all of which limit 501(c)(3) not-for-profit organizations to the same eligibility requirements that apply to private citizens and small businesses.

Federal oversight and accounting of EAJA payouts are virtually absent.

Total costs are unknown. One attorney tracking the issue estimates 12 animal rights and environmental advocacy groups alone filed over 3,300 lawsuits and recovered more than $37 million in EAJA funds over the past decade.

H.R. 1996 requires reporting exact costs. When EAJA was enacted in 1980, it required an annual report of the number of cases processed and total attorney fees reimbursed. That reporting ended in 1995. H.R. 1996 reinstates EAJA reporting requirements, including an audit of prior unreported years.

The bill was introduced by Rep. Cynthia Lummis, R-WY, and will now go to the House of Representatives for a vote. Sen. John Barrasso, R-WY, intro duced a companion version in the U.S. Senate. The bills together share the title Government Litigation Savings Act.

“When the government stopped tracking EAJA payments in 1995, it was a dream come true for radical environmental groups.

Lack of oversight has fueled the fire for these groups to grind the work of land management and other federal agencies to a halt—and it does so on the taxpayers’ dime. Americans have unwittingly funded these obstructionist political agendas for far too long at the expense of individuals, small businesses, energy producers, farmers and ranchers who must pay out of their own pocket to defend the federal government against relentless litigation,” Lummis said. “This common sense legislation would help restore integrity to EAJA and return the program to the original intent of Congress.”

“For far too long, special interest groups have funded their anti-multiple use agenda with Americans’ hard earned taxpayer dollars,” said Barrasso. “It’s absolutely absurd that Washington pays outside groups to repeatedly sue our government. It’s time to halt the endless cycle of reckless lawsuits and fix this broken system. Our bill will protect taxpayer dollars and restore accountability and transparency.”

The bill has been en dorsed by over 85 agriculture, sportsmen, recreation and energy groups.

In testimony before a congressional committee, Boone and Crockett Club president emeritus Lowell E. Baier told committee members that H.R. 1996 would help America’s fish, wildlife and natural resources agencies do their jobs.

Founded by Theodore Roosevelt in 1887, the Boone and Crockett Club promotes guardianship and visionary management of big game and associated wildlife in North America.

The coalition signed on following a 2010 Boone and Crockett Club investigation of federal statutes that enable ongoing litigation at a high cost to wildlife conservation and management. Baier, a Marylandbased attorney, led the effort. His preliminary findings are reported in two articles available free at www.boone-crockett.org. Baier also employed two full-time attorneys to research EAJA’s initial congressional intent, its judicial interpretation and application, abuses, loopholes and possible remedies.

“We have great supporters in getting H.R. 1996 through the Judiciary Committee, but now is when the hard work begins,” Falen said, encouraging calls to state legislators for H.R. 1996 to be brought to the full House of Representatives. — Traci Eatherton, WLJ Editor