Thanks to Nick Smith for this one, from the Capital Press.
Two environmental groups must pay about $4,600 of the U.S. government’s litigation expenses following the dismissal of their lawsuit against commercial thinning in southeastern Oregon.
A federal judge has ordered Oregon Wild and Wildearth Guardians to compensate the U.S. Forest Service for the cost of processing paperwork related to three disputed projects in the Fremont-Winema National Forest.
The environmental plaintiffs claimed the $4,655.80 bill would discourage similar “public interest” lawsuits in the future.
However, U.S. District Judge Michael McShane disagreed, ruling they “have not provided sufficient evidence that an award of costs would be inequitable or create a chilling effect” on such actions.
The judge also said the lawsuit wasn’t of such extraordinary importance that the U.S. Forest Service should be barred from recovering its costs as the prevailing party.
“The court will not allow plaintiffs to hide behind the subject matter of the litigation they initiated to avoid costs Congress intended them to pay” under federal law and court rules, McShane said.
Last year, the plaintiffs filed a complaint alleging the government’s plan to commercially thin 29,000 acres under the three projects was too expansive to “categorically exclude” from environmental review.
In August, however, the judge ruled such analysis wasn’t legally required for the South Warner, Bear Wallow and Baby Bear projects under an exemption for certain habitat improvement treatments.
After the lawsuit was thrown out, the Forest Service asked to be compensated for the money paid to a third-party vendor for converting paper administrative records into searchable PDF computer files.
The environmental plaintiffs objected, arguing they’d brought the case in good faith because the agency’s implementation of forest regulations affects “the entire National Forest system,” not just the 29,000 acres in question.
“Through cases like this one, plaintiffs and other conservation organizations help ensure that federal agencies properly manage public lands and remain accountable to the public they serve,” the nonprofits said.
The government countered that environmental groups are actually encouraged to file lawsuits against federal agencies under the Equal Access to Justice, under which they can recover attorney fees and other litigation costs.
For example, Wildearth Guardians was awarded nearly $300,000 for winning a case against the Forest Service last year, the government said.
The government also pointed to recent tax filings that showed annual revenues of nearly $3 million earned by Oregon Wild and $4.5 million earned by Wildearth Guardians.
“Public information indicates that plaintiffs have adequate means to pay for the modest bill of costs here,” the government said.
The judge said legal precedents allow him to consider the financial resources of plaintiffs, but in this case they’ve “not demonstrated that a severe injustice will result from an award of costs.”
Oregon Wild and Wildearth Guardians had previously appealed the underlying decision to allow commercial thinning on 29,000 acres to move forward.
The groups have now amended their filing with the 9th U.S. Circuit Court of Appeals to also challenge the government’s $4,600 award.
Couldn’t happen to a better couple of groups. Wish it weren’t the ninth.
Nowhere here do I see an assertion by plaintiffs that they “can’t afford” to pay. The court’s words (apparently alluding to a legal standard) were they “have not provided sufficient evidence that an award of costs would be inequitable or create a chilling effect” on such actions. That language has to do with fairness or its effect on unknown future parties and circumstances.
Poor choice of words for a way out. Equitability also means that when you make a choice, the consequences matter. This is a matter of professionalism.
Otherwise any group, enviro or industry, can sue away with no regard to outcomes at the tax payer expense. Choices have consequences, ESPECIALLY with anyone who has a JD and calls themselves a lawyer.
Think, if we flip this around, that each time a District loses in court of an EA/NEPA/CE, that they can’t pay the defendants….is that a chilling effect? Or is it just that the tax payers dollars are free use?
Make them pay up. Otherwise, exit the game.
That’s a good point, Jon, if we could see the amended filing, we could see what their arguments are for not paying it. Apparently they are challenging paying it according to the article.