Forest Service Paid $6.1M in Groups’ Legal Fees Over 6 Years

Scales of Justice by Graham Ibbeson in Middlesbrough

This EE news story, printed in the NY Times here, is notable for among other things having a link to this Journal of Forestry article.

Study: Forest Service Paid $6.1M in Groups’ Legal Fees Over 6 Years

The Forest Service paid $6.1 million in legal fees to groups that sued it over a six-year period, according to an academic study that casts new light on a politically charged issue.

At issue is the Equal Access to Justice Act (EAJA), which requires the federal government to pay attorneys fees when it loses cases under statutes that do not specifically call for such fees to be paid by the government.

Some Republican lawmakers argue that environmental groups have taken advantage of a lack of oversight on such payments and file numerous lawsuits they know they can win on procedural grounds.

Recently introduced legislation (pdf), the “Government Litigation Savings Act,” would amend the statute. The measure’s lead sponsors are two Wyoming Republicans, Sen. John Barrasso and Rep. Cynthia Lummis (E&ENews PM, May 25).

The new report (pdf) — published in the latest issue of the Society of American Foresters’ Journal of Forestry — includes data from the Forest Service and Justice Department obtained through Freedom of Information Act requests.

The payments cover the period 1999 to 2005.

The researchers were Michael Mortimer, an assistant professor at the College of Natural Resources and Environment at Virginia Tech University, and Robert Malmsheimer, a professor at the State University of New York College of Environmental Science and Forestry.

They found that of the $6.1 million that the Forest Service reported paying, $3.2 million went to environmental groups. DOJ reported a different total, $3.5 million.

Frequent litigators included the Sierra Club Legal Defense Fund, the Center for Biological Diversity and Earthjustice.

In reaching conclusions about the findings, Mortimer and Malsheimer conceded the difficulty of making sweeping generalizations, especially due to the discrepancies in the data.

While the law could be seen as encouraging litigation, they wrote, some groups are likely to litigate, regardless of whether they can win legal fees.

“Even if EAJA were completely repealed, these organizations would likely continue to sue land management agencies,” the researchers wrote.

Some of the bigger environmental groups, they wrote, “are quite well financed and therefore not the class of plaintiffs for which the law was designed to provide access to the expensive federal litigation system.”

Although there are repeat players, they wrote, “the vast majority of parties” are only involved in one lawsuit.

Responding to the study, John Buse, legal director for the Center for Biological Diversity, said he disagreed with the researchers’ suggestion that EAJA is a “positive incentive” for litigation because it reduces the risk for groups filing suit.

Although “it may be true” that the law reduces risk, it does not follow that it encourages people to sue, he added.

The study also downplays the law’s role in “incentivizing agencies’ compliance with the law,” Buse said.

The Republican-backed bill (H.R. 1996 (pdf)) to reform the law would restrict reimbursements for each entity to no more than three in a calendar year and would prevent payments to any group that has a net worth of more than $7 million.

The maximum payment for each case would be $200,000.

Separately, there is language in the House appropriations bill for the Interior and U.S. EPA that would require tracking and reporting of EAJA payments.

Click here (pdf) to read the paper.

3 thoughts on “Forest Service Paid $6.1M in Groups’ Legal Fees Over 6 Years”

  1. The proposed EAJA bill, H.R. 1996, would limit eligible EAJA claimants only to those with “a direct and personal monetary interest in the adjudication, including because of personal injury, property damage, or unpaid agency disbursement.” Thus the bill would not appear to affect veterans, social security recipients, regulated industries, or the poor. It is uniquely targeted against environmental and civil rights groups, e.g., free speech proponents.

  2. Considering this results in about 0.02% of the FS budget over the 6-year period, how important is this issue really? To me the proposed bill and the study completely miss the point. The EAJA payments mean next to nothing to how the agency operates because the amount is generally pretty small (given the magnitude of the agency budget) and because those FS units that are on the losing end of the lawsuit aren’t even the ones paying the EAJA bill. As a result these payments truly do not serve as incentives to better follow the law.

    Seems to me our representatives would have more important things to spend their time on given the budget ‘crisis’ and geometrically increasing extent of wildfires each year.


Leave a Comment