Obstruction or Obligation? The Case for and Against Environmental Litigation

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By Tom Kuglin, Independent Record

Federal land management has become one of the hottest political issues this election season, and front and center in the debate are lawsuits filed by environmental groups challenging timber sales as well as listing decisions under the Endangered Species Act.

Yet it is another law, the Equal Access to Justice Act, which opponents of the lawsuits say is unfairly rewarding lawyers of environmental groups by often awarding attorney fees paid for with tax dollars. Environmental groups say the law holds the federal government accountable, and what attorney fees play a critical role in their efforts to protect wildlife and habitat.

The Alliance for the Wild Rockies, the Montana Ecosystems Defense Council and the Native Ecosystems Council are the three conservation groups that have been the most litigious in recent years in the Helena region. The groups have been involved in more than 200 court cases nationwide as plaintiffs or co-plaintiffs against federal agencies like the Forest Service, Bureau of Land Management, and U.S. Fish and Wildlife Service.

The alliance leads the way as a plaintiff on 212 lawsuits dating back to 1989, while the Native Ecosystems Council participated in 101 and the Montana Ecosystems Defense Council in 18, according to court records. The numbers are not a grand total, but include many of the same cases in which the groups filed as co-plaintiffs.

In the last five fiscal years, $617,058.40 in attorney fees has been awarded to the three groups and their co-plaintiffs in lawsuits against the Forest Service. Of that total, $572,058.40 came under the EAJA, according to Forest Service records. Some $45,000 of it went to attorneys for the alliance under the Endangered Species Act judgement fund.

The Forest Service i Region 1, which includes Montana, has an annual budget of around $200 million.

"We pay attention to litigation when we look at analysis and pay attention to where the courts have told us we did not supply enough information," said Forest Service spokeswoman Elizabeth Slown. "I would say the approach we take on litigation is to use each one as a learning opportunity."

When the Forest Service pays attorney fees, the money typically comes from individual forests; budgets, she said. The agency does not budget for lawsuits, so when an award is paid, that eliminates funding for other projects, Slown added.

When the Forest Services loses a lawsuit, that also means additional staff time reworking analysis, Slown said.

"People are allowed to sue the federal government; we're not against that and we want to make sure the work we do is correct and strong," Slown said. "It all ties back to being a natural resource agency, and what we do is based on people's professional judgement."

The EAJA provides equal footing to citizens suing their government or corporations, said Tim Presso, attorney for Earth Justice. The majority of suits deal with social security and veterans' disputes, and those issues do not get painted as abuses by politicians, he said.

Lawsuits that have awarded attorney fees have also included motorized access groups, he added.

Presso emphasized that his firm has not represented the alliance or councils in timber litigation, and only offered comment about the EAJA and not individual court cases.

"(Opponents) frequently don't like the fact that federal environmental law was enforced, but its fundamental purpose is to level the playing field," he said.

Attorneys can be awarded legal fees only if they win, or in a settlement that includes a modification to a project based on the suit, even if the government admits no wrongdoing, Presso said.

Judges have awarded attorneys more than $350 per hour under the EAJA, said Julia Altemus, executive director for the Montana Wood Products Association. Those suits often center on process objections under the National Environmental Policy Act rather than concerns about wildlife, she said.

"That becomes a pretty good source of income, and it encourages them (attorneys) to go to court and sue because they make good money," Altemus said. "They may sue on 12 points but only win on one, but get all the court costs back. It's a business model for them."

About 70 percent of timber comes off of private lands in the state with another 15 percent coming off state lands, despite the federal government owning 67 percent of the timber base, she said. Timber is a market-driven industry, and right now the market is strong, she added.

Many lawmakers have reacted to the lawsuits by criticizing environmental groups as obstructionists and trying to make suing more difficult. Provisions i the 2014 Farm Bill expedites forestry work by categorically excluding certain timber projects in forests identified as "unhealthy" from full environmental analysis, including public comment and objections.

Montana's entire congressional delegation supported the bill.

"It defies common sense that federal laws reward extreme fringe groups for killing Montana jobs and impeding responsible land management," Rep. Steve Daines said in an email. "I will continue fighting to fix EAJA and implement additional reforms that revitalize Montana's natural resources economy, improve the health of our National Forests, and increase public access to our public lands."

Daines has cosponsored three bills which would reform the EAJA, including requiring groups to post a bond, establishing national databases of legal payments and disallowing payments to groups with a net work of more than $7 million.

Sen. Jon Tester emphasized the need for better management on federal lands, citing both litigation and the push from some conservatives to privatize public lands as stifling pragmatic solutions to enhancing forest health.

"Whether it's folks who want to halt timber harvest altogether or those who want to sell off our treasured places, obstructionists on both sides are preventing sound management of our forests," Tester said in an email. "We need everyone working together on the ground to strike a balance so we can clean up our forests, create jobs, and ensure Montana's wild places are there for our kids and grand kids."

Tester has sponsored his own legislation to increase logging while also establishing new wilderness in Montana.

The Montana Wildlife Federation is cautiously optimistic that some quality forestry work will come from the pushback against the litigation, said Nick Gevock, outreach director for MWF.

"With every forestry project there's a presumption now that will be litigated," he said. "Make no mistake, policies like the forestry provision in the Farm Bill are a direct result of litigation."

Environmental groups counter that the EAJA is acting exactly as it should by holding government agencies accountable. The law ensures that average citizens will not be penalized monetarily for doing so.

"It seems to me the focus should be why the Forest Service keeps breaking the law; that's the real story to me," said Steve Kelly, executive director for the Montana Ecosystems Defense Council. "The laws are there to prohibit abuse, and there's no public outcry against this."

Kelly resents the media for making the attorney fees a story, he said. The money paid to attorneys is small proportionally to the federal agency budgets in the state, and if the EAJA were eliminated, corporations and the timber industry would be free to take what they wanted from public lands. Most politicians are beholden to the timber industry and corporations in the state, he said.

"It all comes down to the haves and have-nots," Kelly said. "If it (EAJA) were taken away, we'd be a lot less able to protect wildfire habitat."

Laws like the Farm Bill make it harder for the public to have a voice in the management of public lands, said Mike Garrity, executive director for the alliance.

"I think that anyone should be concerned that the federal government doesn't want the public to have a say," he said. "They treat it like it's their land and they think it would be easier if the public just left them alone."

Congress is supposed to ensure federal agencies follow the law, Garrity said, adding that the alliance has won under both judges appointed by both Democrats and Republicans. The First Amendment not only protects free speech but allows for a redress of grievances when the government does something wrong, he said.

"We could never afford to pay that (attorney fees) on our own," he said. "I'm not going to apologize for successfully suing the government. How come no one is asking why the Forest Service has such a big problem following the law?"

Originally printed in the Montana Standard on October 14, 2014; written by Tom Kuglin.


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