Judge orders review of ruling that awards excessive attorney fees

May 11, 2012

In a small win for agriculture, and a potential turn of events on the Equal Access to Justice Act (EAJA), a federal appeals court ruled that a judge awarded excessive attorneys’ fees to a conservation group following a dispute over federal grazing permits in Idaho.

U.S. District Judge B. Lynn Winmill of the District of Idaho originally awarded the group that initiated the legal battle, Western Watersheds Project, $183,160, after it won a challenge against the Bureau of Land Management’s handling of grazing permits in southwestern Idaho. According to Western Watersheds, the government failed to correctly assess the environmental impact of the program, a violation of the National Environmental Policy Act. The final decision and subsequent court cases eventually opened the door for Western Watersheds to seek attorneys’ fees under EAJA.

Earlier this month, the San Francisco-based 9th U.S. Circuit Court of Appeals ordered that the lower-court judge reconsider the total amount awarded.

“Under its reasoning, fees would be recoverable for most administrative proceedings in which the District Court relies on the administrative record,” Judge Mary Schroeder wrote for the unanimous three-member panel.

The U.S. Supreme Court has “stated consistently that fees for administrative proceedings can only be awarded under § 2412(d) (1)(A) if the District Court ordered the further proceedings, and the District Court action remained pending until the conclusion of the administrative proceedings,” Schroeder added.

Here the “administrative proceedings were not tied to any thenpending District Court litigation,” according to the ruling.

“We therefore must vacate the fee award and recommend for the district court to reduce the award by the amount that represents fees incurred in the administrative proceedings,” Schroeder wrote.

She also noted that Congress has specifically stated fees should not be awarded in administrative proceedings involving grazing permit disputes.

“An award of fees in this case would conflict with Congress’s express limitation on fee awards for pre-litigation administrative grazing-permit proceedings,” Schroeder wrote.

While a small victory in the history of EAJA, it may be a starting point.

National Cattlemen’s Beef Association, and other ag industry groups, have EAJA on the top of their priority lists for reform in 2012.

“The EAJA was designed to level the playing field between small businesses and individual citizens and the federal government. It allows plaintiffs to recover legal costs from the federal government when they prevail in a case against the federal government,” according to NCBA.

But NCBA says although EAJA was intended to protect citizens’ rights, it has become a means for radical environmental and animal rights groups to target ranchers by challenging in court their rights to natural resource uses.

Environmental groups are collecting millions of dollars from federal agencies, thanks to EAJA, signed by President Carter in 1980.

While the environmental groups continue to gain financial ground using EAJA, the government is not even keeping track of the payouts, according to studies.

The 1980 act also covers 501(c)(3) nonprofits that aggressively sue the feds to enforce land-use laws, the Clean Water and Clean Air acts and laws protecting endangered species. Their lawyers are getting reimbursed at rates as high as $750 an hour, according to Fox News.

“It was intended for helping our nation’s veterans, seniors and small business owners, but environmental groups have hijacked the so-called Equal Access to Justice Act and abused it to fund their own agenda,” Sen. John Barrasso, R-WY.

The exact taxpayer cost of the act is unknown. According to a Fox News report, the General Accounting Office (GAO) tracked 525 legal fee reimbursements that totaled $44.4 million from 2001 through 2010, but found that only 10 of 75 agencies within the U.S. Department of Agriculture and Department of Interior could provide data on cases and attorney fee reimbursements.

“As a result, there was no way to readily determine who made claims, the total amount each department paid or awarded in attorney fees, who received the payments or statutes under which the cases were brought for the claims [for fiscal years 2000 through 2010],” the GAO report reads.

A recent Notre Dame Journal of Legislation article called the act “… one of the broadest-reaching, yet most obscure federal laws in existence.”

“In the past thirty years, this law has gone from a welcome corrective measure for the small business community to a powerful weapon wielded against federal agencies that has caused them to spend millions of dollars in payments for largely meritless lawsuits, and an almost certainly larger amount of money in preparing for, responding to, and fighting such lawsuits. And it has produced an incalculable waste of taxpayer money and loss of government productivity,” journal author Lowell E. Baier writes.

Baier calls for limiting it to small businesses and individuals and withholding or at least limiting payments where plaintiffs prevail on “process instead of substance.”

In May, Barrasso and Rep. Cynthia Lummis, R-WY., jointly introduced the Government Litigation Savings Act to reform EAJA. If passed, the bill would cap reimbursements at $200 per hour. It would also limit repetitive lawsuits and require full accounting of payments authorized by EAJA, the GAO report found.

But environmental groups say the law is working just fine and the reimbursements don’t come close to covering their expenses to provide incentive to bring frivolous cases.

Kieran Suckling, executive director of the Center for Biological Diversity, said in statement issued in October that environmental groups collect only a small portion of overall fees under the Act. He said his own group receives only a tiny fraction—less than 0.5 percent, on average—of its annual revenue of about $8 million from those attorney fees recovered.

“No one’s getting rich by making the government follow the law,” Suckling said in the written statement. “Republicans are using this bill as a back-door attack on environmental laws they don’t like. The end result will be restricting citizen access to the court system and a federal government that’s less accountable to the people.”

Traci Eatherton, WLJ Editor