Environmental Litigation Gravy Train

Below please find a press release/Letter to the Editor regarding the amount of litigation
filed by environmental organizations and the amount of attorneys fees these groups
have received from the federal government for these cases. I am sure that you will be as
shocked by these numbers as I have been.

Consider these facts:

! Between 2000 and 2009, Western Watersheds Project (“WWP”) filed at least 91
lawsuits in the federal district courts and at least 31 appeals in the federal
appellate courts;

! Between 2000 and 2009, Forest Guardians (now known as WildEarth
Guardians) filed at least 180 lawsuits in the federal district courts and at least 61
appeals in the federal appellate courts;

! Between 2000 and 2009, Center for Biological Diversity (“CBD”) filed at least
409 lawsuits in the federal district courts and at least 165 appeals in the federal
appellate courts.

! In addition, over the last 15 years, the Wilderness Society has filed 149 federal
court lawsuits, the Idaho Conservation League has filed 69 federal court lawsuits,
the Oregon Natural Desert Association has filed 58 lawsuits, the Southern Utah
Wilderness Association has filed 88 lawsuits and the National Wildlife Federation
has filed 427 lawsuits.

! In total, the eight environmental groups listed above have filed at least 1596
federal court cases against the federal government.

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! Every one of the groups listed above are tax exempt, non-profit organizations.
Every one of those groups listed above receives attorney fees for suing the federal
government from the federal government.

! These statistics do not include cases filed in the administrative courts, such as
BLM administrative permit appeals before the Office of Hearings and Appeals or
Forest Service administrative appeals. These statistics only include federal
district court cases.

On the other end, these same environmental groups are receiving billions of
federal tax payer dollars in attorney fees for settling or “winning” cases against the
federal government. Accurate statistics have not been kept by the Justice Department
or the federal agencies, thus there is no accounting for the total amount of tax dollars
paid, however, we were able to uncover these facts:

There are two major sources for attorney fees that can be paid to plaintiffs that
“prevail” in litigation either by winning a case on the merits or by the Justice
Department agreeing that the group “prevailed” in a settlement by achieving the
purpose of the litigation. One source of funding is called the “Judgment Fund.” The
Judgment Fund is a Congressional line-item appropriation and is used for Endangered
Species Act cases, Clean Water Act cases, and with other statutes that directly allow a
plaintiff to recover attorney fees. There is no central data base for tracking the payment
of these fees, thus neither the taxpayers, members of Congress nor the federal
government knows the total amount of taxpayer dollars spent from the Judgment Fund
on individual cases. The only information regarding these fees that is available is:
! In fiscal year 2003, the federal government made 10,595 individual payments
from the Judgment Fund to federal court plaintiffs for a price tag of
$1,081,328,420.00.

! In 2004, the federal government made 8,161 payments from the Judgment Fund
for $800,450,029.00.

! In 2005, 7,794 payments were made from the Judgment Fund for a total of
$1,074,131,007.00.

! In 2006, the federal government made 8,736 payments from the Judgment Fund
for $697,968,132.00.

! In only the first half of fiscal year 2007, the federal government made 6,595
payments from the Judgment Fund for $1,062,387,142.00.

! In total, $4,716,264,730.00 (that is billion with a “b”) in total payments were paid
in taxpayer dollars from the Judgment Fund from 2003 through July 2007 for

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attorney fees and costs in cases against the federal government.

The second major source of payments to “winning” litigants against the federal
government is the Equal Access to Justice Act (“EAJA”). EAJA funds are taken from the
“losing” federal agencies’ budget. Thus, for example, the attorneys fees paid under
EAJA come from the “losing” BLM office’s budget. That is money that could be used for
range monitoring, NEPA compliance, timber projects, archeology and cultural
clearances and other agency programs. Within the federal government, there is no
central data system or tracking of these payments from the agency’s budgets. The only
statistics we were able to compile are as follows:

! Between 2003 to 2005, Region 1 of the Forest Service (Montana, North Dakota,
northern Idaho) paid $383,094 in EAJA fees.

! Between 2003 to 2005, Region 2 of the Forest Service (Wyoming, South Dakota,
Colorado, Nebraska, Oklahoma) paid $97,750 in EAJA fees.

! Between 2003 to 2005, Region 3 of the Forest Service (Arizona, New Mexico)
paid $261,289.85 in EAJA fees.

! Between 2003 to 2005, Region 4 of the Forest Service (southern Idaho, Utah,
Nevada) paid $297,705 in EAJA fees.

! Between 2003 to 2005, Region 5 (California) of the Forest Service paid $357, 023
in EAJA fees.

! Between 2003 to 2005, Region 6 (Washington state, Oregon) of the Forest
Service paid $282,302 in EAJA fees.

! Out of the 44 total cases in which the Forest Service paid EAJA fees between
2003 and 2005, nine plaintiffs were NOT environmental groups and 35 payments
went to environmental group plaintiffs.

We also tried to track the fees paid to environmental groups in certain federal
courts. For example, in the Federal District Court for the District of Idaho, over the last
ten years, WWP received a total of $999,190 in tax dollars for “reimbursement” for
attorney fees and costs. Of the total cases filed by WWP in the Federal Court in Idaho,
19 were before Judge Winmill; eight of those cases resulted in a decision on the merits
with WWP prevailing and with the total attorney fees being awarded of $746,184; six of
the cases were settled by the federal government with a total attorney fees still being
awarded of $118,000. WWP won one case but attorney fees were not paid. WWP lost
six cases. There were two cases in which the documents indicated that the federal
government agreed to pay attorney fees, but the payment amount was kept confidential
from the public.
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In my opinion, there are a lot of things wrong with this picture. The federal
government is spending billions in tax payer dollars without any accounting of where
the money is going or to whom it is going. There is no oversight in spending this money,
especially the money that is coming out of agency budgets that should be funding on the
ground programs to protect public lands, national forests, ranchers, recreationists,
wildlife and other land uses. Nonprofit, tax exempt groups are making billions of
dollars in funding; the majority of that funding is not going into programs to protect
people, wildlife, plants, and animals, but to fund more law suits. Ranchers and other
citizens are being forced to expend millions of their own money to intervene or
participate in these lawsuits to protect their way of life when they have no chance of the
same attorney fee recovery if they prevail. In fact, they are paying for both sides of the
case–for their defense of their ranch and for the attorney fees for environmental groups
receive to sue the federal government to get them off their land. There are also
numerous cases where the federal government agrees to pay attorney fees, but the
amount paid is hidden from public view. Somewhere this has to stop and the
government has to be held accountable for the money its spending.

 

Budd-Falen Law Offices, L.L.C.
Karen Budd-Falen 1
Franklin J. Falen 1
Brandon L. Jensen 1, 2
Kathryn Brack Morrow 1 ,2, 3
300 East 18th Street
Post Office Box 346
Cheyenne, Wyoming 82003-0346
Telephone 307/632-5105
Telefax 307/637-3891
main@buddfalen.com
www.buddfalen.com
1admitted in Wyoming
2admitted in Colorado
3admitted in New Mexico