Can I supersize that Lawsuit?

[Big Fin]

Well, the drive-by litigators are taking a big swing for the fences on this one. We all know that the sage grouse was petitioned for listing under the Endangered Species Act and in September the USFWS issued a "not warranted" decisions. That is in large part to a decade of conservation work started by private landowners, State and Federal agencies, and non-profit groups.

But, let no good deed go unpunished in the world of serial litigators. On Thursday, the lawsuit was filed against the USFWS by the normal suspects in the environmental world.


https://www.biologicaldiversity.org/news/press_releases/2016/greater-sage-grouse-02-25-2016.html


https://www.advocateswest.org/case/sage-grouse-rmp-challenge/


And once again, if they prevail on one small item, even a technicality where one of the many complex Federal statutes is in conflict with another Federal statute, they will get reimbursed for attorney fees at far higher rates than they pay their attorneys, creating a nice profit for their bottom line.

I'm completely over these folks and their abuse of process. I am about to go on a serious campaign to advocate for changing some of these rules these welfare operators use to abuse the process. They are taking legislation that had good intent when passed, such as the ESA, NEPA, FLMPA, and others, and making a mockery of these laws. Odds are, their continued abuse of this process is going to cause the pendulum to swing so far the other direction that it will result in some bad outcomes. Given these groups feel no accountability, and under the Equal Access to Justice Act that they use to litigate and make a profit there is no accountability, I expect the abuse to continue escalating until someone decides enough is enough.

In the case of sage grouse, an ESA listing would impact 70 million acres in the inter-mountain west. That is a huge part of the landscape. And if successful, they will negatively impact a lot of the grazing and other resource plans that were implemented as part of the sage grouse planning. Some of the best range managers and biologists on this topic work for the BLM and other Federal and State agencies. They have crafted a great plan. But, by using the loopholes of the process, these environmental groups are going to put all of this complex science in the hands of some sympathetic Federal judge who has an undergrad degree in English and a Law degree.

And here is where this continual judicial abuse of process manifests itself.

Every time the court rules in their favor those who rely on the land for their income of their passion, see it as one more sign of a small urban minority using the courts to impose their social wishes on the rural communities. In effect, these litigators convert every wildlife planning process into a social experiment with those of us in the hinterlands being involuntary lab rats to the social experiment. It brews a high level of frustration to work hard to come to collaborative solutions and provide compromise among our groups, only to have a messed up legal process that lets a small handful of profit-motivated environmental groups hijack it all for their own benefit.

This provides all the ammunition needed for the Legislative and Congress folks who are looking for these types of abuse to use as a rallying cry for their cause; often times a misguided cause. These Congresss/Legislative fringe operators appeal to Bundy-type frustrations expressed by those who feel like they are being used as lab rats by this very small handful of environmental groups who need subjects for their social and judicial experiments.

What happens as a result? The crazy fringe of the "Sell the public lands" movement use this kind of result as their evidence to support their fight to steal your public lands. These kind of lawsuits are the fuel that runs the bat shit crazy machine on the far fringe that would screw you out of your public lands tomorrow.

I'm over it. We are fighting the public land "political fires" on one front and while we are doing that, the environmental groups are lighting back fires behind us with their continued abuse of the process. These rules need to change. The more hunters know about this process, the better. Time has come to call these folks out for what they are. The sooner the public knows how abusive this process is, the better.

For a good explanation of how the profits are made in frivolous environmental lawsuits, go to this podcast link. Too long to explain here. The explanation of this abusive mechanism starts at 1:24:00 time code.


https://youtu.be/pIWkn4JjBO0?list=PLLdxutimd-JvflcJylHR04bP4j4GpcxnC


If the abuse these groups impose to this process under the Equal Access to Justice Act (EAJA) does not piss you off, you have far lower blood pressure than I do.

 

[elkantlers]

Sue and settle. The organizations and lawyers that do this are low life scum. They couldn't care less about endangered species, the environment or anything else. They are just looking for a big fat paycheck.

 

[Southwind]

I had no idea they could do that, it has spawned a profitable enterprise for those agencies at the expense of all of us. Explains a lot too for that matter.

Thanks for sharing this.

 

[ERSS]

I love this country, but soo many systems are just broken

 

[airlocksniffer]

.....

 

[Ben Lamb]

To be fair & balanced, these groups are not the first to sue on the big bird. The mining industry and two states have ramped up lawsuits designed to toss the BLM plans altogether, which would essentially ensure a listing of the bird.

If those states and industry win, they would qualify under EAJA for payments (well, Industry would.)

The litigants from Big Green are suing for stronger plans - not to eliminate them. It's slight distinction but an important one. They are not suing to stop implementation, nor are they suing to get the bird listed. While I don't agree with them on this suit, I do think that it's a better approach than they have taken in the past, and more representative of what they are trying to do as opposed to sue & settle.

EAJA is an important tool for holding government accountable. The recent attempts to weaken it are poorly thought because we're all tired of the constant barrage of lawsuits, but I've yet to see any method of addressing the issue of "sue & settle" that doesn't make it harder for citizens to hold their government accountable.

It's a messy issue, to be sure.

 

[JoseCuervo]

With all due respect to the OP/Administrator/GuyWithBanHammer/CheckbookWriter that posted this message, there is quite a bit of mis-information in the OP.

The OP has a massive generalization of misstatements that seeks to divide more wedges within the community that seeks to make sure we have Sage Grouse, Chinook Salmon, Steelhead, Wolves, and other healthy populations of animals roaming around on My Public Lands for me to fish and hunt. To continue to paint these organizations as against a hunter's best interest is to play right into the hands of the Welfare Ranchers, Aluminum Companies, and other groups who CREATED the messes and use the "anti-Equal Access to Justice Act" against hunters and fishermen in the West.

If you want to see the groups opposed to the Equal Access to Justice Act, go to groups like:

BeefUSA.org (a Welfare Rancher group) http://www.beefusa.org/uDocs/LB-EAJA.pdf and see why they don't like being held accountable.

BeefProducer.com http://beefproducer.com/story-ncba-supports-house-bill-equal-access-justice-act-10-134708 and see why they don't like the act.


The above lets you know who is pushing this agenda. Why the OP has chosen to side with the guys who eliminated the wolves in Idaho, Wyoming, and Montana in the first place, and who continue to obstruct management of wolves (See the cowboys in the Wyoming legislature) is baffling to anyone who cares to roam around on My Public Lands and fish and hunt.

One of the crazier wedges to drive.


As for the "profit" comments, coming from a CPA I have a hard time believing they are even written. These are non-profit organizations that rely on funding from donors (who, hopefully are hunters and fisherman) to advocate for those who can not advocate. There is no "profit", and a recent podcast by the OP alleges that the attorneys are getting paid something like a $350 rate per hour in SF, while paying their local guy in Bozeman (or Boise) a $60-70 wage. (I am not direct quoting the podcast with those numbers, as I listened to it while working out a few weeks ago, and was not taking notes. If the OP has a problem with the numbers and towns I alluded to, please feel free to correct.) That is not how the reimbursement works as attorneys in Boise or Bozeman can not collect SF wages. And, any payments have to be approved by the presiding judge, just as recovery of legal fees is done in other court cases. You present your costs, you present your arguments justifying the costs, and the Judge grants as seen fit.

In fact, according to a GAO report in 2011, last year I can find, reimbursement is not very common.

Although there is an absence of definitive data about EAJA’s costs (Congress itself eliminated EAJA reporting requirements in 1995), a recent study by the U.S. Government Accountability Office (GAO) of the approximately 2,500 cases related to the U.S. Environmental Protection Agency (EPA) filed from 1995 to 2010 found that the presiding judge awarded government-paid attorney fees in only about 8% of environmental cases. Within this small subset of cases, the report found that “EPA made a small number of payments for attorney fees and costs under the appropriate provision of EAJA.”1

One of the things that most don't understand when complaining about environmental lawsuits is that generally, these suits are filed to FORCE compliance of the US Government Agencies with the laws passed by the US Congress and signed by a President of the US. That is why, the success rates on these lawsuits are typically in the 85-90% win rate.

For the wildlife damaging industry groups to be attempting to describe them as frivolous and "drive by", "serial", and other such terms serves no purpose in discussing the real issues.

Some of these "drive by" and "serial" groups have been advocating on behalf of hunters, fishermen, salmon, sage grouse, and others who use My Public Lands for longer than many of the newcomers to the West have been living here.

An example is the Snake River Sockeye salmon was first listed as endangered in 1991. It has taken 25 years of lawsuits to address the other endangered species of salmon and steelhead and to get recovery plans that have started to slow the rate of extinction we were looking at in the 80's and 90's.

If you remember, we were down to a single Sockeye coming back to Redfish Lake in Idaho, "Lonesome Larry" in 1992. Today, returns of up to 1000 fish per year to Redfish. To attempt to discredit the groups that have fought in court for the last 25 years as "drive by" and "serial", when in fact, they pre-date the OP's involvement in public lands activism is unhelpful, at best.

Only to the thanks of many lawsuits, many filed on behalf of the Salmon and Steelhead fishermen in Idaho, Oregon, Washington by the very litigators who raise the OP's blood pressure do we now enjoy Salmon fishing in Idaho again. We now have steelhead runs in Idaho that people all over the country invade towns like Orofino, Riggins, Kamiah, Lewiston, etc.

These lawsuits were filed AGAINST the agencies that were ignoring and violating the LAWS of the US. And, for the benefit of hunters and fisherman, the Judges decided the Agencies should put the interest of hunters and fisherman AHEAD of the interests of Welfare Ranchers, Power Companies, and similar.

Perhaps a bigger perspective and a longer time horizon is needed to truly understand the issues on My Public Lands.



Getting banned in 5.....4.....3....2...

 

[RobG]

Hi Randy,

I don't like most of these lawsuits but simply put they are the price of freedom. If you want to bankrupt CBD the way to do it is to have the feds follow their own rules so fight for more funding.

Consider this timeline (from https://www.washingtonpost.com/news...ween-cliven-bundy-and-the-federal-government/ since you brought up Bundy):

July 2009: The federal government is still fighting with local ranchers [Bundy et. al]. They have signs posted all over the public land, stating that it is off-limits for grazing.

April 2012: The BLM plans to round up Bundy's cattle. After several threats, these plans are abandoned. The Center for Biological Diversity files an intent to sue against the BLM for canceling their plans.

May 2012: BLM files a complaint in a federal Las Vegas court seeking an injunction against Bundy.

Is that really so bad? Where would we be if we couldn't sue? If it weren't for the various groups keeping the government honest there wouldn't be a lot of wildlife to sue about. I know of other cases where an agency had to use the "excuse" of a lawsuit to enforce their own rules.

Regarding business model suggested in your podcast you neglected the fact that they don't win every case. Also, a few months ago I talked with an attorney who has been involved with several similar suits and he would strongly disagree that they get compensated for technicalities and other minor issues. Even if they prevail they often don't get compensated depending on the conditions of settlement. I will suggest that the donations they get to fight these issues makes it a profitable, but it is a bit ridiculous to suggest these attorneys are in it for the money when there are more lucrative ways for a lawyer to make money. For example, working for Exxon. I haven't met one attorney that didn't believe in the underlying cause (which is not to say I agreed with what they were doing).

But perhaps the biggest issue is, what do you propose to replace it with? The deposit Zinke wanted would only prevent the little groups from suing. The so called tort reformers (i.e. the ones suing Obama) only want to eliminate these lawsuits so they can exploit the lands and prevent so-called federal overreach such as in the Bundy case.

I wish there was an easy answer but this seems to be an issue where the "fix" is much worse than the problem so put this in the expense column and label it the price of freedom.

 

[JLS]

Jose,

Your PM inbox if full.

 

[RobG]

I guess I have to type faster if I want to get ahead of Ben and Jose .

 

[JoseCuervo]

Jose,

Your PM inbox if full.

By design.....

 

[Southwind]

Jose,

Your PM inbox if full.

You can accurately state he is "full of it" in general.

 

[Big Fin]

To be fair & balanced, these groups are not the first to sue on the big bird. The mining industry and two states have ramped up lawsuits designed to toss the BLM plans altogether, which would essentially ensure a listing of the bird.

If those states and industry win, they would qualify under EAJA for payments (well, Industry would.)

The litigants from Big Green are suing for stronger plans - not to eliminate them. It's slight distinction but an important one. They are not suing to stop implementation, nor are they suing to get the bird listed. While I don't agree with them on this suit, I do think that it's a better approach than they have taken in the past, and more representative of what they are trying to do as opposed to sue & settle.

EAJA is an important tool for holding government accountable. The recent attempts to weaken it are poorly thought because we're all tired of the constant barrage of lawsuits, but I've yet to see any method of addressing the issue of "sue & settle" that doesn't make it harder for citizens to hold their government accountable.

It's a messy issue, to be sure.

Ben, can you provide links to those industry lawsuits. I would like to read them and their claims against what was a very collaborative process that provided some great example of how progress can be made among many competing stakeholders whereby all parties benefit, except the litigation franchises and their attorneys. If some on the other side filed suits to unwind that process, I would like to know about it and put them on my growing list of "no gooders." Unless I read EAJA wrong, industry would not qualify for reimbursement under the EAJA, unless they were under the net worth threshold.

Since many lurkers read this forum and I am sure this thread has been shared, and will be shared more, with groups who will fight to the ends of time to protect their tactical advantage provided under this law, I may as well provide some other opinions based on decades of being involved in these issues.

I would argue that Big Green is not suing for stronger plans. I would argue the following and I could provide plenty of evidence to support that argument.

- They are suing for control of the landscape in a manner that forces the rest of the stakeholders to see the world through their eyes and live their lives according to the values and priorities of Big Green.

- They see the world in their manner and they expect the rest of society to be beholden to that world view. If others tried to force a world view on them, they would be crying of every it a violation of important social pillar of our society. Yet, they are willing to do the same without any consideration of their actions on the lives of others.

- They are content to see that happen, all under the thinly veiled guise of "wildlife." They have zero interest in wildlife. Correction, they adhere to the single species model of wildlife environmentalism, with them picking and choosing the species winners according to what species puts the most donation in their coffers.

- They see Federal regulation as a way to take wildlife management from a 10th Amendment state purview to a Federal level purview. They do not like the outcomes of state-level management. The Federal level purview they desire gives them all the aces in the deck, while continuing to ask the peons on the landscape to continue paying the freight for the wildlife that is helping fund their paychecks.

- They are suing for profits. I would laugh in their faces if these litigators tried to argue that profit motive, either through direct reimbursement or by using it as a call to action for donations, is not part of their strategy. Bottom line profits is a big motivator for lawsuits brought under EAJA and everyone knows it, including those filing the lawsuits.

​

The EAJA was a good idea. I am not privy to why Senator Patrick Leahy pushed so hard for the exclusion provided to 501 (c)(3) organizations, but it has changed the manner in which this law is used.

The facade of "holding government accountable" is the straw man argument on EAJA. A small tweak to the EAJA to stop reimbursement of non-profit organizations would do nothing to prevent citizens from "holding government accountable." I don't think non-profits "are citizens" any more than I think corporations "are citizens."

I wish this was about wildlife. I wish it was about holding government accountable. It is gone so far beyond those principles, that you cannot even see where those boundaries are from where the environmental crowd has carried this process.

Now that their gig is being shown for what it is, they scream foul; they hide behind the "little old lady" argument, when it is the little old ladies who actually need EAJA for their government grievances. In doing so, these groups and their abuse of this law put at risk a very important law designed to help citizens. Yet, they have no concern about that. With rights granted under law, comes some responsibility to use those rights in a non-abusive manner. If one cannot do so, expect society to tire of the abuse and change the laws and to correct the abuses perceived.

As my grandmother said, "Those most offended are usually those most offensive." In the case of the environmental litigators, that holds completely true. They have built a franchise model on this legal process. I fully expect them to fight it to the bitter end, with all their resources. When I bring up this topic, it fires them up to no end. Their venom towards anyone who would suggest even the slightest change of this law comes across to me as prima facie evidence of how dependent they have become on this law for them to get paid for imposing their views upon others.

I know Big Green will fight this for all they can. Yet, much of society, including many reasonable people in the middle, have tired of their tactics. We have reached a point where you will see some rather interesting alliances to bring some sort of sanity back to this process. And if the public lands are ever taken/sold, Big Green will have plenty of blame on their hands for having a completely uncompromising "our way is the only way" view of the world that has been high octane fuel that keeps the fires burning over on the fringe where the land grabbers have set up their camps.

Expect a lot more on this in the coming year, especially after the election shakes out.

 

[Big Fin]

Jose, thanks for proving my point of how vocal some will be in defense of this small change. If you look further at the GOA reports, you will find how they admit to having very little record of actual payments made, to whom, and for how much.

You will not get banned. You know that. So, please continue to prove my point of how viciously the users of this new found franchise jackpot will fight to keep it intact.

And you want to talk about painting with broad brushes and generalizations, go read your post again. Pot- meet Kettle.



This should make for some very interesting discussion.

 

[Ben Lamb]

Randy,

All I have is PDF's. I'll forward those to you. In the mean time:

http://missoulian.com/news/state-an...cle_e7e23936-14ae-5ac6-b8d5-b2c3aedec44f.html

Industry doesn't sue under their corporate mantle, but under their trade associations, which would fall under the net worth threshold.

There might be some that think listing the birds is the only way forward, but I don't think any group that I know of working on the issue believes that a listing by judicial fiat is anything but bad for public land management and bad for the ESA overall.

These plans are a huge step forward in how we manage public land, and some groups didn't think they went far enough. Others think they went too far. Fair enough - that's part and parcel of how we manage lands in a democratic republic.

While I largely agree that some of these groups use litigation to influence public policy rather than find the common ground necessary to move conservation forward, I'm not sure that it applies in this one instance. The big issue is going to be Grizzly de-listing for these groups. EAJA doesn't do much in terms of raking in money like a good, fear-based email about how the states will kill every grizzly bear if delisted.

 

[Oak]

Are there any situations where it is "ok" to sue on behalf of wildlife under the EAJA, even a successful lawsuit disenfranchises a segment of the rural communities? I would argue that sometimes successful lawsuits by "Big Green" bring stakeholders to the table for collaboration that otherwise would be more likely to tell you to go pound sand. I don't think it's fair to lump all lawsuits filed under the EAJA together.

 

[Ben Lamb]

If you look further at the GOA reports, you will find how they admit to having very little record of actual payments made, to whom, and for how much.

This was done under Gingrich w/ the Paperwork Reduction Act. Lummis has a good idea in bringing the reporting back.

 

[Gevock]

Randy,

There are some good collaberative efforts underway to improve forest and sagebrush-steppe management on public lands. I know that term gets used a lot but I'm now on the Beaverhead-Deerlodge working group in my job capacity, and we're putting together some excellent habitat projects that address issues such as aspen regeneration, conifer encroachment, culvert replacement, etc. And the Forest Service is putting more resources into project planning to get them through. I try to stay optimistic and I'm hopeful the Forest Service and BLM step up to address these issues.

 

[Big Fin]

There might be some that think listing the birds is the only way forward, but I don't think any group that I know of working on the issue believes that a listing by judicial fiat is anything but bad for public land management and bad for the ESA overall.

These plans are a huge step forward in how we manage public land, and some groups didn't think they went far enough. Others think they went too far. Fair enough - that's part and parcel of how we manage lands in a democratic republic.

While I largely agree that some of these groups use litigation to influence public policy rather than find the common ground necessary to move conservation forward, I'm not sure that it applies in this one instance. The big issue is going to be Grizzly de-listing for these groups. EAJA doesn't do much in terms of raking in money like a good, fear-based email about how the states will kill every grizzly bear if delisted.

Thanks, Ben. I look forward to those PDFs.

I agree with what you have provided. A listing of sage grouse by "judicial fiat" is going to be a disaster for many things; the EAJA, the ESA, NEPA, Clean Air Act, Clean Water Act, Wild Horse and Burro Act, and every other piece of Federal Law that will be claimed as the root of all evil. Yet, those groups who are the regular suspects in this process have no accountability, so they will never change their behaviors. Failure to use discretion in exercising rights provided under law, something many of us would term as "abuse of the law," results in society changing the laws that they perceive are being abused. And the pendulum never settles in the middle.

If I was on the side of Big Green, I would be calling in some of these regular suspects and telling them to cool it. The political tides of America are fickle. And some day, in some election, the political deck will be reshuffled and changes to this process will come. And when it comes, it will not be just EAJA that gets tweaked. Nope, because of the actions of a few, the entire library of Federal environmental law will be on the alter of sacrifice. And I will argue it is because some cannot operate in a democracy where compromise results in better and longer lasting outcomes, rather they live in a politicial-judicial mindset of winners and losers. They abide by the principle that their ends justify their means, so long as it means they are the winners. Viewing the world as winners-losers exempts them from having to compromise and try to find workable solutions. Having adopted that "win and take the spoils of victory" approach it will be an ugly day when these groups finally find themselves on the losing end. But, they have asked for it, thumbing their noses at all who participate in collaborative efforts, and not too many will shed tears on their behalf.

To Oak's point, there is surely times when lawsuits under the EAJA might be the best, or only, option available. One of the tragedies of any abusive process, as is the over use of this effort by the environmental litigators, is when the abusers have no regard for how their extraneous efforts end up where society "throws the baby out with the bath water." And when the bath water is tossed (public fed up with what they perceive as abuse), so is the baby (the needed litigation Oak could is referring to).

And to Ben's point, Yes, the big money in terms of donations will come in the form of "charismatic conservation," such as grizzly bears, lynx, and wolves. These groups are experts at the "single species at the expenses of all others" campaigns when it comes to raising money.

 

[Big Fin]

Randy,

There are some good collaberative efforts underway to improve forest and sagebrush-steppe management on public lands. I know that term gets used a lot but I'm now on the Beaverhead-Deerlodge working group in my job capacity, and we're putting together some excellent habitat projects that address issues such as aspen regeneration, conifer encroachment, culvert replacement, etc. And the Forest Service is putting more resources into project planning to get them through. I try to stay optimistic and I'm hopeful the Forest Service and BLM step up to address these issues.

Exactly, Nick. Just as their was collaboration on sage grouse, the Montana wolf plan, the Greater Yellowstone grizzly plan, the many collaborative forest planning efforts ....... yet that collaboration is not acceptable to the litigators who have the "world according to us" and the winners-loser approach. They will litigate your collaborative efforts, as they have litigated so many collaborative efforts before.