By Paula Easley
April 1, 2005
You've seen the character in the TV commercial with the $$$-embellished yellow suit hawking his book on getting free money from the government? Sue the government instead. Environmental groups do it every day and, because these citizen suits allow plaintiffs to recover attorney fees and court awards, win or lose, suing the government is enormously lucrative.
When Congress and the courts granted activists standing to bring citizen lawsuits, they thought they were acting in the public interest. That conclusion has, unfortunately, proved flawed due to blatant abuse. Had citizen litigants been required to bear their own costs if they failed to persuade the courts as to the merits of their views, the situation might never have gotten out of hand.
The Center for Biological Diversity of Tucson, Arizona, has made suing the government an art form. With a staff of 30, it claimed to have filed over 175 lawsuits against federal agencies - lawsuits that have caused economic distress to western economies, and driven many ranchers to the verge of bankruptcy. (Stopping cattle grazing on public lands is one of its major pursuits.)
No one is better at exploiting weaknesses in the federal tort system and loopholes in public land planning and review processes than the Center. Lawsuits provide income to file yet more lawsuits, usually to punish agencies that failed to meet performance deadlines because they were busy defending themselves against lawsuits, not doing the very work needed to avoid another lawsuit. A vicious cycle. In 2003, the CBD collected more than $990,000 from its game, mostly from the federal government.
The CBD's policy director Kieran Suckling defended its work to a reporter: "A loach minnow is more important, than say, Betty and Jim's ranch - a thousand times more important. I'm not against ranching. My concern is the impact on the land."
Well, the Center got a taste of its own medicine recently. Jim Chilton, a fifth-generation rancher whose ancestors drove cattle into Arizona in the 1880s, had sued the Center for libel. When finally brought to trial, a Tucson jury agreed that the Center "knowingly disseminated false and malicious statements" and used misleading photographs to harm the rancher, after the Center's unsuccessful attempt to block renewal of his Forest Service grazing permit.
Chilton described how the CBD operates. He said, for example, it sues the Forest Service for whatever reason, and then, if the Service didn't do something the Center wanted, the CBD would ask for - and get - an injunction to end grazing, until the Forest Service righted its wrong. (Suing under the Endangered Species Act is the CBD's preferred tool.) The rancher and taxpayers take it in the shorts, the environment is no better off, and the CBD loses nothing.
When Jim Chilton saw some outrageously misrepresentative photographs (some not even of his property) on the Center's website, he was not amused. His wife Sue testified "It was a rather loud yell and cowboy words. I hope I don't have to be too specific." The good news is the jury awarded the Chiltons $100,000 in actual damages, and $500,000 in punitive damages. The Center vowed to appeal. If Chilton ever collects, he plans to donate everything above his costs to the Arizona Cattle Growers' Association.
Chilton fought back another time, in a lawsuit involving 85 western ranches. The Fish and Wildlife Service had concluded cattle grazing would likely adversely affect the "endangered" Sonoran Chub. To continue grazing on certain pastures, Chilton was told he must hire a biologist, zoologist, fish biologist, botanist, and rangeland conservation expert - all of whom would have to inspect his pastures nine times a year. Uttering equally expressive cowboy words, and claiming that such foolishness would wipe him out, he vowed to get the ruling overturned and did, seven years later. There was never evidence the chub was even on his land, or that cattle grazing would affect it.
Few ranchers could afford to defend themselves from the campaign to make public lands "cattle free." Jim Chilton could, and did, and they owe him a great debt. Today, more than 7,100 environmental lawsuits are being litigated in the U.S. During the 1990s alone, the U.S. Treasury paid $31.6 million in legal fees for environmental cases filed against the government.
Congress, state governments, and legislatures, including Alaska's, are
finally responding to complaints over the years, and passing corrective
legislation. Will it stifle legitimate legal challenges? No. Will the
environment go to hell in a handbasket? No. Will creating a level playing
field be better for all concerned? Let's hope so.
Paula Easley, an Anchorage public policy consultant, is vice chair, Nationwide Public Projects Coalition; president, Alaska Land Rights Coalition; and board member, Resource Development Council of Alaska.