Total numbers on litigation fees not adding up in GAO report

Mar 28, 2014

A report released last week by the U.S. Government Accountability Office (GAO) claims that litigation brought by environmental groups is not out of control, despite an admitted apparent lack of bookkeeping in the offices.

While the Center for Biological Diversity was quick to jump on the report with another misleading press release claiming that House Republicans have imagined the “calamity-inducing threat to the National Forest system,” GAO did confess in its report that all the numbers were not all accounted for.

The report covered 2000 to 2010, and began in April of 2012. GAO found that USDA did not report any aggregated data on attorney fee claims and payments made under the Equal Access to Justice Act (EAJA) and other fee-shifting statutes for fiscal years 2000 through 2010, but USDA and other key departments involved—the Departments of the Treasury and Justice—maintained certain data on individual cases or payments in several internal agency databases.

That still leaves 2011-2013 open for discussion, review and study. It appears that the big picture on any misuse of EAJA may be missing.

Collectively, these data did not capture all claims and payments, according to the GAO report. USDA officials stated at the time that given the decentralized nature of the department and the absence of an external requirement to track or report on attorney fee information, the information was not centrally tracked and decisions about whether to track attorney fee data and the manner in which to do so were best handled at the agency level.

Officials from 29 of the 33 USDA agencies GAO contacted for its April 2012 report stated that they did not track or could not readily provide GAO with this information. The remaining four USDA agencies had mechanisms to track information on attorney fees, were able to compile this information manually, or directed GAO to publicly disclose available information sources. GAO found that the Forest Service was the only program agency within USDA that was able to provide certain attorney fee data across the 11-year period. GAO reported in April 2012 that about $16.3 million in attorney fees and costs in 241 environmental cases from fiscal years 2000 through 2010 was awarded against or settled by the Forest Service.

In addition, GAO said the extent to which the four USDA agencies had attorney fee information available for the 11-year period varied. Given this limitation as well as others, such as inconsistent availability of payment data, GAO concluded that it was difficult to comprehensively determine the total number of claims filed for attorney fees, who received payments, in what amounts, and under what statutes. GAO did not make any recommendations in its April 2012 report.

In January, Attorney Karen Budd-Falen shared some facts on EAJA at the Red Meat Club dinner at the 108 National Western Stock Show.

According to Budd-Falen, President Ronald Reagan’s plan when he signed EAJA into law, was to help the “little guy” fighting the federal government.

“The problem is that statute got hijacked, quite frankly, starting when Clinton was president,” Budd-Falen said.

Former President Bill Clinton signed the Paperwork Reduction Act, allowing the government to basically skip the accounting piece relating to attorney fees. Groups like Western Watersheds Project, WildEarth Guardians, and the Center for Biological Diversity quickly figured out the new loophole.

“When President Reagan signed that act, for example, he said that there should be a $7 million net worth cap so that if your net worth is over $7 million you can’t even apply for attorney’s fees. So if you have a ranch or if you have a business and its worth over $7 million, you can’t even apply for attorney’s fees even if you sue the federal government and the federal government’s a bully and you win. The problem is that does not apply to quote “nonprofit public interest” groups,” Budd-Falen said.

According to Budd-Falen, the Center for Biological Diversity’s net worth was $10 million in 2010, but they still get attorney’s fees through EAJA. And they are just one of several wealthy environmental activists groups milking the system.

“And the big daddy of them all, Natural Resources Defense Council, net worth $248,958,243 as a nonprofit, public interest group, and they can get their attorney’s fees paid by the federal government when they sue the federal government,” Budd- Falen said. — Traci Eatherton, WLJ Editor