Fresh Tracks Weekly - Reform the EAJA for wildlife

[Big Fin]

This is a topic that I've almost had to compartmentalize, given how much it raises my blood pressure. Marcus knows it gets me worked up and he convinced me to sit down and give some thoughts on how the Equal Access to Justice Act is being abused by environmental litigators (drive by litigators as I learned to call them from @Ben Lamb).

The deeper dive segment of this FTW video goes into the EAJA, what it was intended to do, how it is abused, how the Feds get the blame for everything, and how the law is a cash cow for the litigators.

Should a group like the Sierra Club with $167million of revenue and $144 million of net assets be allowed to make a profit by suing the Federal Government under an obscure law that was intended for Grandma to be able to sue for her social security benefits?

Of the $36 million of revenue the Center For Biological Diversity had on their most recent IRS Form 990, should $9.8million come from legal settlements and reimbursements? These are coming in large part from the EAJA. Shouldn't they be able to pay their legal expenses out of their $32 million of net assets?

You and I cannot seek reimbursement if we have net assets over $2 million. The law doesn't need to go away, it needs reformed to change how non-profits are using this law to kill most of the management actions on Federal lands. The reform needs to be in changing how 501(c)(3) groups use it for reimbursement and profit models.

Enjoy. Go to the video link and contact your Senator or Congress Member to remove the exemption for non-profits to use the Equal Access to Justice Act.

 

[Forkyfinder]

This is a topic that I've almost had to compartmentalize, given how much it raises my blood pressure. Marcus knows it gets me worked up and he convinced me to sit down and give some thoughts on how the Equal Access to Justice Act is being abused by environmental litigators (drive by litigators as I learned to call them from @Ben Lamb).

The deeper dive segment of this FTW video goes into the EAJA, what it was intended to do, how it is abused, how the Feds get the blame for everything, and how the law is a cash cow for the litigators.

Should a group like the Sierra Club with $167million of revenue and $144 million of net assets be allowed to make a profit by suing the Federal Government under an obscure law that was intended for Grandma to be able to sue for her social security benefits?

Of the $36 million of revenue the Center For Biological Diversity had on their most recent IRS Form 990, should $9.8million come from legal settlements and reimbursements? These are coming in large part from the EAJA. Shouldn't they be able to pay their legal expenses out of their $32 million of net assets?

You and I cannot seek reimbursement if we have net assets over $2 million. The law doesn't need to go away, it needs reformed to change how non-profits are using this law to kill most of the management actions on Federal lands. The reform needs to be in changing how 501(c)(3) groups use it for reimbursement and profit models.

Enjoy. Go to the video link and contact your Senator or Congress Member to remove the exemption for non-profits to use the Equal Access to Justice Act.

Educational, thats for sure. Hope this message can spread.

 

[Nameless Range]

Really looking forward to this one. Interesting topic.

 

[bayoublaster7527]

This is a great topic. This is one of the major funding sources for the national anti-hunting groups who have specifically targeted eliminating hunting in Colorado (Center for Biological Diversity, WildEarth Guardians, etc). This is how anti-hunting groups fund their campaigns to influence wildlife commission appointments and push ballot initiatives.

What can we do? I assume emails to our congressional representatives is the best place to start? Is this something that orgs like RMEF, TRCP, SCI, CSF could work together and take on?

 

[Chama Grande]

As someone who has done ESA work and chaired those kinds of workgroups before - I loved this segment. No matter what we did in those groups, we knew we were getting sued anyway. Thank you for taking the time and putting this together

 

[QuazyQuinton]

I'm late to the party as I finally got a chance to listen to the discussion. The thing I'm curious about is why pro-hunting organizations aren't taking advantage of the same opportunity. If you can't beat 'em, join 'em, so to speak. It would probably accelerate some reforms to the EAJA, but either way wouldn't it help to level the playing field?

QQ

 

[Forkyfinder]

One thing that came to mind @Big Fin - why doesn't rmef or others sue the government for not managing the land and the associated ecological issues?

Seems like if people are using this to the ultimate detriment of wildlife (lack of logging, controlled burns, etc.) then this also provides avenue to sue?

 

[Big Fin]

One thing that came to mind @Big Fin - why doesn't rmef or others sue the government for not managing the land and the associated ecological issues?

Seems like if people are using this to the ultimate detriment of wildlife (lack of logging, controlled burns, etc.) then this also provides avenue to sue?

When I was on the RMEF Board, the USFS was the biggest partner for habitat improvement projects and access projects. Suing your biggest project partner didn’t seem like a good idea, and I suspect it will seem like a bad idea today, given it is the USFS whose projects are being litigated by the other side. RMEF and many other groups are asked by the USFS to give input and feedback on these habitat/landscape projects, which they do. To then litigate a project you’ve given input to, sometimes even providing additional funding for, is a hard path to justify.

 

[Forkyfinder]

When I was on the RMEF Board, the USFS was the biggest partner for habitat improvement projects and access projects. Suing your biggest project partner didn’t seem like a good idea, and I suspect it will seem like a bad idea today, given it is the USFS whose projects are being litigated by the other side. RMEF and many other groups are asked by the USFS to give input and feedback on these habitat/landscape projects, which they do. To then litigate a project you’ve given input to, sometimes even providing additional funding for, is a hard path to justify.

That makes sense. Sucks in a way - wish folks at the sierra club would care more about results of the actions/policies they push and less about their intent.

Thanks for the response.

 

[Nameless Range]

Finally got around to listening to this, and I will be sharing it.

I'm aware of lots of litigation that has occurred all over the west, but one I know fairly well and seems in line with a lot that was discussed was the Iron Mask litigation in the Elkhorns. In 2005, the Rocky Mountain Elk Foundation and the The Conservation Fund partnered to purchase the Iron Mask Ranch – over 5,500 acres of elk winter range and habitat to many other critters. A few years after that, LWCF funds were leveraged to transfer ownership to the BLM. It’s beautiful and broken country – juniper draws giving way to the timbered eastern slopes of the Elkhorns. As development continues around the Elkhorn Mountains, it was a forward-thinking acquisition. I rode into it on horseback with a fellow HuntTalker last year and it's a precious and absolute firewall against the Broadwater Valley's proliferating subdivisions.

10 years ago, the BLM planned some work in there that involved prescribed burning and conifer encroachment mitigation that made a lot of sense and would've benefited everything from elk to pronghorn to sharptail. AWR and NEC put a halt to it in because, as far as I can tell, the plan had a grazing lease component. The judge ruled in favor of those two litigators on 1 of the 5 of their challenges. Even nearly a decade later, it's still sucking the energy out of a field office with little bandwidth.

Some things I thought about while listening:

-Just the other day I read an article that would put an end to "Judge Shopping". Makes me wonder if the serial litigators will have far less luck moving forward. https://www.reuters.com/world/us/us...pts-policy-curtail-judge-shopping-2024-03-12/

-Not long ago, I heard Governor Gianforte speak about the EAJA almost as if he had read Randy's notes on it. Like this, it was a balanced take from my perspective. One thing he did say was that from his perspective as a former congressman, there is absolutely no chance of reform without a Republican President. Now, a partisan might say something like that, but I wonder if it is actually quite true?

-The point Randy made about the status quo ultimately harming things like the ESA and the Clean Water Act, and even the predators that rely on prey, is a really compelling argument for reform to me.

Thanks for sharing, @Big Fin

 

[Forkyfinder]

Finally got around to listening to this, and I will be sharing it.

I'm aware of lots of litigation that has occurred all over the west, but one I know fairly well and seems in line with a lot that was discussed was the Iron Mask litigation in the Elkhorns. In 2005, the Rocky Mountain Elk Foundation and the The Conservation Fund partnered to purchase the Iron Mask Ranch – over 5,500 acres of elk winter range and habitat to many other critters. A few years after that, LWCF funds were leveraged to transfer ownership to the BLM. It’s beautiful and broken country – juniper draws giving way to the timbered eastern slopes of the Elkhorns. As development continues around the Elkhorn Mountains, it was a forward-thinking acquisition. I rode into it on horseback with a fellow HuntTalker last year and it's a precious and absolute firewall against the Broadwater Valley's proliferating subdivisions.

10 years ago, the BLM planned some work in there that involved prescribed burning and conifer encroachment mitigation that made a lot of sense and would've benefited everything from elk to pronghorn to sharptail. AWR and NEC put a halt to it in because, as far as I can tell, the plan had a grazing lease component. The judge ruled in favor of those two litigators on 1 of the 5 of their challenges. Even nearly a decade later, it's still sucking the energy out of a field office with little bandwidth.

Some things I thought about while listening:

-Just the other day I read an article that would put an end to "Judge Shopping". Makes me wonder if the serial litigators will have far less luck moving forward. https://www.reuters.com/world/us/us...pts-policy-curtail-judge-shopping-2024-03-12/

-Not long ago, I heard Governor Gianforte speak about the EAJA almost as if he had read Randy's notes on it. Like this, it was a balanced take from my perspective. One thing he did say was that from his perspective as a former congressman, there is absolutely no chance of reform without a Republican President. Now, a partisan might say something like that, but I wonder if it is actually quite true?

-The point Randy made about the status quo ultimately harming things like the ESA and the Clean Water Act, and even the predators that rely on prey, is a really compelling argument for reform to me.

Thanks for sharing, @Big Fin

One thing about it - this is listening to your constituents (election) season.

Hoping i can get a letter together to send that sounds decent.

 

[sapperJ24]

An awards database has been public since the 2019 John Dingell Act. Awards can be looked up here:

EAJA Awards - Equal Access to Justice Act Reporting

eaja.acus.gov

Center for Biological Diversity, Alliance for the Wild Rockies, EarthJustice have done especially well for their attorneys over the years.

In 2023, 16 federal agencies reported 15,762 separate awards totaling $115,476,482.59. Of those 15k+ awards, 15,645 were awarded for cases involving the Social Security Administration or the Dept. of Veterans Affairs. USDA and DOI paid out 40 combined awards, 21 and 19 respectively.

Jon Tester made some comments on EAJA back in 2012 regarding the creation of the awards database, but I haven't found much additional with the exception of a Alliance for the Wild Rockies op ed from 2014 going after Tester and Daines for suggesting there should be changes to the EAJA.

 

[RobG]

I'm not a fan of monkey-wrench lawsuits, but the agencies could follow the law so they don't have to pay out. I can't imagine the abuses if they weren't held accountable by someone.

 

[Nameless Range]

I'm not a fan of monkey-wrench lawsuits, but the agencies could follow the law so they don't have to pay out. I can't imagine the abuses if they weren't held accountable by someone.

I agree that the agencies should follow the law, but in the example above on the Iron Mask which is something I know about, of the 5 things the BLM was litigated against, the only 1 that stuck was the claim that the "BLM failed to analyze the “cumulative effects” of past and future projects in the area" - a reference to the Johnny Crow Project (another litigated project that probably only survived the litigation because it was performed under a Categorical Exclusion).

The EAJA allows these groups to throw dozens of very vague pieces of spaghetti at the wall and hope one sticks because they can hedge against skin in the game. In the example above as well as the Johnny Crow Project, knowing the landscape and the folks involved in planning those, I think the agencies often do try to follow the letter of the law, and pour ridiculous amounts of agency funding and time into planning those projects - time that would be better spent elsewhere - knowing that their best and most well-meaning efforts to do so will be challenged regardless.

TLDR: Often, there is no RX Burning, fuels reduction, conifer encroachment work that AWR,CBD, NEC, etc. seem to ever support, which is telling. Their positions on these projects are nearly always anti-project as a whole, not a component of the project, which is also telling.

 

[Big Fin]

I'm not a fan of monkey-wrench lawsuits, but the agencies could follow the law so they don't have to pay out. I can't imagine the abuses if they weren't held accountable by someone.

I am all for accountability and doing things correctly. @Nameless Range gives a good example, a very common example, of how they prevail on non-substantive issues. Not in any meaningful way, rather what most would call "technicalities" in very complicated laws, or in how those laws are applied to very complicated topics.

And I think a point missed in this "reform" discussion is that if this law was changed to reduce the financial incentives for non-profits to litigate, they could still litigate. Nothing would prevent them from continuing their litigation strategies. They could still litigate would just be on their own dime, like it is for every other person, company, or organization.

Would change in the EAJA reduce litigation by environmental non-profits? Very likely, given the perverse incentives it currently provides for non-profits to do so.

Would change in the EAJA get these groups to start participating from the start, rather than decline the collaborative invitations and just wait until the end and litigate? I'm less sure of them participating, as having spend three years on a committee regarding grizzly bears, these groups showed no interest in collaborating during the process.

Would change in the EAJA allow agencies to get management action implemented and improve wildlife habitat? I believe it would.

 

[44hunter45]

Any reform should include 3rd party audits of all hours billed. Any org or lawyer padding their billing should be charged criminally.

 

[Forkyfinder]

Dear - XXX,

I am writing to express my concerns regarding the Equal Access to Justice Act (EAJA) and its impact on the operations of agencies bestowed with the responsibility of managing public lands and the wildlife that live there. As a concerned citizen and sportsman - I believe it is imperative to address the unintended consequences of this legislation.

As I understand, the EAJA was initially intended to ensure that individuals and small businesses have access to affordable legal representation when challenging unreasonable actions taken by federal agencies, however it has unfortunately evolved into a system that enables certain non-profit organizations to engage in frivolous lawsuits as a business model to the detriment of conservation.

Non-profit organizations, under the guise of environmental protection, have exploited the EAJA to file baseless lawsuits against agencies like the BLM, Forest Service, and state game agencies, which are dedicated to managing our lands in a productive manner that benefits wildlife and promotes sustainable use. These lawsuits not only drain valuable limited resources from these agencies but also hinder their ability to carry out essential conservation efforts and land management activities.

Additionally, the misuse of the EAJA undermines the collaborative efforts between government agencies and other non-profit organizations that are genuinely committed to environmental stewardship. Instead of fostering constructive dialogue and cooperation, it breeds mistrust and hostility, impeding progress towards shared conservation goals between well meaning non-profits and agencies that are supported by taxpayers and sportsmen alike.

Therefore, I urge you - as my representative - to consider repealing or amending the EAJA to prevent its abuse by opportunistic entities that seek to obstruct legitimate land management practices and conservation initiatives. By restoring balance and accountability, we can ensure that taxpayer funds are utilized efficiently and effectively to protect our natural resources and wildlife for future generations.

I look forward to your action and response in addressing the concerns I have raised.

Please provide feedback on the letter. I'd like to provide references to cases as well, from someone who has more legal acumen here. Regardless of your political beliefs this feels like something we should all be able to get behind.

 

[Elky Welky]

If I have the time today, I'll watch and share my thoughts. The MT legislature tried to kabosh environmental EAJA lawsuits last session (particularly anything that would result in an injunction), and I opposed it on behalf of the little guy the EAJA is meant to protect (as @Big Fin pointed out in the very first post).

My hesitancy comes from the fact that judges should be the ones screening these kinds of suits, and doing a better job of quashing anything before it gets out of hand. Judges need to make certain findings that these cases have merit, and I think much of the burden falls on them. There's also a perception that litigation is cheap and inevitable, but the reality is, most 501(c)(3)s can't afford to sue, and most (emphasis on most, not all) NGOs work hard to avoid litigation until they feel they have no other choice. Even if the EAJA waives some of the costs, there's still all the other ancillary costs to litigating anything.

Ever since the tort reform movement of the early 90s, there's a perception that we live in a sue-happy society (it's less so than you'd think). In the environmental realm, it certainly feels as though it has gotten out of hand, but I'm not entirely sold. I've already said too much, and I'm looking forward to watching the video and diving deeper into this issue. @MtEngineer, happy to review your letter in detail (perhaps over a beer or two) and help too.

 

[Ben Lamb]

If I have the time today, I'll watch and share my thoughts. The MT legislature tried to kabosh environmental EAJA lawsuits last session (particularly anything that would result in an injunction), and I opposed it on behalf of the little guy the EAJA is meant to protect (as @Big Fin pointed out in the very first post).

My hesitancy comes from the fact that judges should be the ones screening these kinds of suits, and doing a better job of quashing anything before it gets out of hand. Judges need to make certain findings that these cases have merit, and I think much of the burden falls on them. There's also a perception that litigation is cheap and inevitable, but the reality is, most 501(c)(3)s can't afford to sue, and most (emphasis on most, not all) NGOs work hard to avoid litigation until they feel they have no other choice. Even if the EAJA waives some of the costs, there's still all the other ancillary costs to litigating anything.

Ever since the tort reform movement of the early 90s, there's a perception that we live in a sue-happy society (it's less so than you'd think). In the environmental realm, it certainly feels as though it has gotten out of hand, but I'm not entirely sold. I've already said too much, and I'm looking forward to watching the video and diving deeper into this issue. @MtEngineer, happy to review your letter in detail (perhaps over a beer or two) and help too.

Anytime we decide to try and limit the freedom of the citizenry to take on the powers of the government, we must tread carefully and very, very thoughtfully. Well said Jake.

 

[Forkyfinder]

If I have the time today, I'll watch and share my thoughts. The MT legislature tried to kabosh environmental EAJA lawsuits last session (particularly anything that would result in an injunction), and I opposed it on behalf of the little guy the EAJA is meant to protect (as @Big Fin pointed out in the very first post).

My hesitancy comes from the fact that judges should be the ones screening these kinds of suits, and doing a better job of quashing anything before it gets out of hand. Judges need to make certain findings that these cases have merit, and I think much of the burden falls on them. There's also a perception that litigation is cheap and inevitable, but the reality is, most 501(c)(3)s can't afford to sue, and most (emphasis on most, not all) NGOs work hard to avoid litigation until they feel they have no other choice. Even if the EAJA waives some of the costs, there's still all the other ancillary costs to litigating anything.

Ever since the tort reform movement of the early 90s, there's a perception that we live in a sue-happy society (it's less so than you'd think). In the environmental realm, it certainly feels as though it has gotten out of hand, but I'm not entirely sold. I've already said too much, and I'm looking forward to watching the video and diving deeper into this issue. @MtEngineer, happy to review your letter in detail (perhaps over a beer or two) and help too.

I agree that judges should do better... all systems in govt are reliant on people to weed out the garbage and do their job.

What is the action if there remains issues and there is failure in the system?