‘Equal Access to Justice Act’ is an open door to environmentalist tyranny 

‘Equal Access to Justice Act’ is an open door to environmentalist tyranny

April 4, 2017  

“…over a decade, eight environmental groups filed more than 3,300 cases in federal district courts across the country. In the last two years of the Bush Administration, seven groups filed 253 lawsuits; in the first two years of the Obama Administration, those groups filed 525 lawsuits…It is not only the sum; also outrageous is the hourly rate granted to environmental group attorneys. Instead of the statutory hourly ($125), these lawyers averaged $491; the highest rate awarded was $775!”

by Marjorie Haun
Washington is undergoing a Trumpian shakeup, which is a bad thing for the career bureaucrats in the administrative state, but a good thing for American citizens. But the dysfunction in D.C. is not limited to the activities of unelected bureaucrats who make regulations with all the force of law, and none of the accountability of law-making. There is a law on the books which made its way through Congress in the late 1970’s and was signed by President Carter at the end of his term in 1980, that is a key enabler of federal waste and corruption. The Equal Access to Justice Act (EAJA), designed by well-intending Democrats to ‘level the playing field’ for private citizens running up against federal regulatory agencies, has become a well-worn path to judicial hell for the the agencies whose mission it is to promote the general welfare and protect the rights of citizens–especially federal land and resource management agencies.
In recent decades, extremist environmental NGO’s such as Center for Biological Diversity, Sierra Club, Wildearth Guardians, and many, many others, have turned the EAJA into a sharp and swift-acting weapon to halt access to, and stop development of resources on public lands managed by the Bureau of Land Management (BLM), U.S. Forest Service, Fish & Wildlife, and other agencies, effectively locking up millions of acres, and turning these–often sympathetic–agencies into monoliths of land and resource obstruction. The ability to easily sue federal agencies using EAJA, has also created a pipeline of funding from American taxpayers to the pockets of avaricious special interests and their overpaid attorneys. Extremist environmental NGO’s have been made incredibly powerful and incredibly rich by suing, and quickly settling with, federal agencies which would rather pay out quick settlements than spend years in court and tens of millions of dollars (all from your pockets) defending the constant stream of lawsuits brought by myriad environmentalist plaintiffs.
The newly-installed Trump Administration, whose plan to correct federal overreach and bloat is summarized by “Drain the Swamp,” is bringing attention to the corruption, bureaucratic rot, and incestuous entanglements between agencies, special interest NGO’s, and totalitarian globalists, which have long poisoned the Executive Branch and its enforcement agencies. Despite this dramatic change in vision, Congress and President Trump are confronting gargantuan governmental malformations which must be addressed through executive orders, bureaucratic reforms, and fast legislative action. In order to end the toxic ‘sue & settle’ culture through which radical special interests have become extremely rich on taxpayer dollars, Congress must reform or ‘repeal and replace’ the Equal Access to Justice Act, and it must be done with haste.
In 2012, Mountain States Legal Foundation published the following piece by William Perry  Pendley, citing abuses of the EAJA by extremist special interest groups, which have often been facilitated by equally radical bureaucrats in the EPA, BLM, U.S. Forest Service, Fish & Wildlife, et al.:

Equal Access To Justice Act Is Neither Equal Nor Just: Environmental Groups Get Paid Off And File More Lawsuits; Meanwhile Private Citizens Battle For Years For Their Fees

Sep 15, 2012 | by William Perry Pendley

---

In July 2012, Karen Budd-Falen, a Cheyenne, Wyoming attorney, presented her findings on the Equal Access to Justice Act (EAJA) to the 100th Anniversary Conference of the Rocky Mountain Coal Mining Institute in Vail, Colorado. After spending years researching court documentsthe federal government keeps no unified records of EAJA disbursementsMs. Budd-Falen found that environmental groups have amassed hundreds of millions of dollars in EAJA awards, which they use to file more and more lawsuits.
Among Ms. Budd-Falen’s findings were that, over a decade, eight environmental groups filed more than 3,300 cases in federal district courts across the country. In the last two years of the Bush Administration, seven groups filed 253 lawsuits; in the first two years of the Obama Administration, those groups filed 525 lawsuits. Examining just one federal district court and the lawsuits filed by just one group, she discovered that the U.S. Department of Justice gave the group EAJA awards totaling $1.151 million! It is not only the sum; also outrageous is the hourly rate granted to environmental group attorneys. Instead of the statutory hourly ($125), these lawyers averaged $491; the highest rate awarded was $775! (By comparison, the lawyers who represent seniors and veterans average EAJA awards of only $172 an hour.)
The EAJA was written for much nobler purposes, which was to allow Americanslike veterans and seniorswho are forced to litigate against the federal government to be paid their attorneys’ fees and expenses when they prevail and if the government’s legal position is not substantially justified. There is an eligibility restriction based on net worth ($2 million for individuals and $7 million for entities), but that limitation does not apply to tax-exempt (environmental) groups. The use of the EAJA by environmental groups is unique in two additional ways, one not intended by Congress, the other not anticipated. Environmental groups recover fees for suing over non-injurious, technical violations of federal law, whereas most other EAJA applicants sue to vindicate constitutional or statutory rights. Finally, although environmental groups are paid quicklyfederal lawyers rarely if ever challenge the groups’ EAJA demands, and the groups often file open-and-shut lawsuits, such as missed deadlinesprivate litigants are paid only after years, if ever.
Budd-Falen’s findings come as no surprise to Mountain States Legal Foundation (MSLF). For decades MSLF has watched as radical environmental groups are paid quickly for their litigation. For example, in a big oil and gas case in Pennsylvania, three environmental groups filed a lawsuit, which the Obama Administration quickly settled by agreeing to do what the groups demanded. As part of the sweetheart settlement, the groups were paid nearly $20,000 simply for filing their 12-page complaint, which works out to $1,600 a page! On the other hand, federal lawyers consistently oppose the demands for payment under the EAJA filed by private citizens.
Take MSLF’s client John Shuler of Dupuyer, Montana, who killed a grizzly bear in self-defenseas allowed under the Endangered Species Actbut was prosecuted by the federal government for nearly a decade. Shuler prevailed only after MSLF expended $225,000, but federal courts denied his EAJA application, holding that the federal government’s position in his case was substantially justified. The courts did so despite the risible factual and legal arguments of federal lawyers: 1) Shuler did not act in self-defense despite that the bear charged and fell mortally wounded 20 feet from him; 2) Shuler, by leaving his house, unlawfully placed himself in the zone of imminent danger, 3) Shuler’s dog Boone, by going on point, provoked the bear and, thus, escalated the conflict; and 4) bears are entitled to a higher standard of self-defense because they are not capable of sapient thought.
Or take MSLF’s client Donald Eno, a disabled veteran on fixed income, eking out a living as a miner on his gold and travertine claim in the Plumas National Forest in northern California. In 1996, the U.S. Forest Service took legal action to drive Mr. Eno off his valuable claim. The government argued, for example, that his mining would interfere with cultural myths allegedly important to some Maidu Indians; in fact, one Forest Service attorney met, unsuccessfully, with the Maidu urging them to so assert. In December 2003, after years of pre-hearing preparation, testimony, and post-hearing briefs, an administrative law judge ruled in favor of Mr. Eno. The federal government appealed, but in February 2007, Mr. Eno won once again. Although federal lawyers did not appeal, they challenged Mr. Eno’s EAJA claim for nearly $200,000, a battle that, after more than five years, remains in federal court!
Or take MSLF’s client Stanley K. Mann, a professor, lawyer, and alternative-energy entrepreneur, whose extremely valuable geothermal wells were seized illegally by federal officials. Beginning in April 1998, Mr. Mann fought to recover payment for what had been taken from him; in April 2009, Mr. Mann was awarded nearly $1 million. Despite his clear victory, the years invested in it, and the absence of any justification for the government’s illegal actions, federal lawyers contested his nearly $300,000 EAJA claim. Nearly three years later, Mr. Mann awaits a ruling.

The abuse of EAJA is a well-known and well-documented problem, and legislative efforts have been made in past years to address it. But, being openly hostile to economic activities and resource development on federally-controlled lands, the Obama Administration ignored reformation acts passed through Republican-dominated bodies.  There is, however, a new sheriff in town, whose Executive Cabinet chiefs have a decidedly different vision than Obama’s, and there should be an all-out push to close legal loopholes in EAJA. Up to now, the EAJA has made the federal government a convenient and easy host to parasitic environmentalist NGO’s feeding, and growing ever more powerful on the hard-earned dollars of American taxpayers.