Can I supersize that Lawsuit?

[Oak]

I have no problem with environmental lawsuits. If they want to fund it with their own money, knock yourself out.

If you have enough money to hire an attorney, then you are allowed to challenge the government? I don't think that's what you mean, but maybe you do. At any rate, I think the brush is still pretty broad.

I guess I would like to hear some suggested changes to the EAJA, if it is not to be scrapped completely. What specifically would make it better?

 

[JoseCuervo]

On litigants receiving funding for losing the case under EAJA, I haven't heard of this, but don't distrust Randy's word. I'm trying to find some info on that, if anyone has any. It's long been my understanding that only successful litigants can seek funding through the Justice Fund or EAJA payments.

The history of this issue is that in 2009, after losing in court for the umpteenth time, Karen Budd-Falen, the unsuccessful attorney for the Welfare Ranchers had to come up with a message for those who were paying her while failing in court, time after time.

She then created the bogeyman of the funding of EAJA to spin to the Welfare Ranchers, and since then, they have pushed the message through whatever Welfare Rancher sympathetic media channels they can as seen earlier this thread with the links to the Beef groups.

You are correct on the payments. A prevailing party must win, and must prove the governement's position was not substantially justified.

The government may defeat the petition for a fee award if it can show that, despite having lost the case, its regulatory and legal position was “substantially justified". If
the court finds that the government’s position in the case was substantially justified, no fee payment can be made.

That is an incredibly high hurdle, and definitely repudiates the previous "no-risk scenarios" painted earlier in this thread.

 

[JoseCuervo]

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[1_pointer]

The definition of "win" should also be a part of the debate if EAJA change happens.

For example, should it count as a "win" if one's side is ruled in favor on 1 of 5 points of contention?

One thing that often is not brought up, here, is what burden, if any, should an appellant be responsible for in the case of a loss? I think that is some of the zero-risk that was mentioned earlier in the thread.

 

[JoseCuervo]

The definition of "win" should also be a part of the debate if EAJA change happens.

For example, should it count as a "win" if one's side is ruled in favor on 1 of 5 points of contention?

One thing that often is not brought up, here, is what burden, if any, should an appellant be responsible for in the case of a loss? I think that is some of the zero-risk that was mentioned earlier in the thread.

There is rarely a loss in these cases by the appellants. For good reason, they have the law on their sides.

The government punishing groups trying to help hunters and fisherman when the government violates the law seems like a bad policy.

 

[belly-deep]

The government punishing groups trying to help hunters and fisherman when the government violates the law seems like a bad policy.

Yeah, they were really trying to help us with the wolf litigation. They helped a lot.

And when sage grouse get listed, that will help too. Because regulations will run a lot of the small ranchers and farmers out of business and the Wilks bros will buy them up. That will really help hunters and fishermen.

 

[Ben Lamb]

There is rarely a loss in these cases by the appellants. For good reason, they have the law on their sides.

The government punishing groups trying to help hunters and fisherman when the government violates the law seems like a bad policy.

A large number of cases filed are not on the merits of the project, when it comes to timber at least. It's about esoteric vagaries in the law that can be exploited for a favorable outcome, essentially it's i's not being dotted or t's not being crossed.

So while technically they're right, the victory does not match up to the rhetoric. They claim a project is bad, sue, win on the technicality and then they get to tell us the opposite of reality. The Benchmark fuels reduction project is a good example of that.

On the Budd-Falen issue, yes - she's been selling this for a while and her numbers are easily debunked. The GAO report from 2012 does a good job of that.

http://www.gao.gov/assets/600/590084.pdf

Rep. Lummis had a god idea on restoring the reporting requirement that congress killed in the mid-90's. I wholly support that since it provides a lot more transparency in government.

Most of the reforms necessary though lie not in EAJA, but in the NEPA processes used in forest planning, etc. Much like the Farm Bill provision in 2014, we need a little bit different take on how to manage forests rather than the current model which excels at generating conflict rather than collaboration - but again - that kind of change is slow and frustrating.

 

[Big Fin]

If you have enough money to hire an attorney, then you are allowed to challenge the government? I don't think that's what you mean, but maybe you do. At any rate, I think the brush is still pretty broad.

I guess I would like to hear some suggested changes to the EAJA, if it is not to be scrapped completely. What specifically would make it better?

Correct. I was not referring to complete removal of environmental lawsuits under EAJA, rather stopping reimbursement for those suits brought by non-profits that are over the net worth thresholds applied to claimants who are non qualified 501(c)(3).

Changes; here is what I think would be helpful. Others will have a different opinion than mine. Some have been mentioned.

1. Requirement that no case requesting reimbursement under EAJA can be sealed. Many cases and many settlements are sealed, so the GAO and other agencies cannot even give an accounting of who got paid. how much they got paid, and what claims of the case were recognized as being valid and thus allowed for reimbursement.

Anyone wanting to know how this process often times gets pulled away from the bright light of transparency, just Google GOA and EAJA reimbursements. You will find mountains of reports of how the GOA is not able to provide accurate information, for two reasons. One being as Ben Lamb mentioned, Congress removed funding for government-wide reporting. Other being that many cases are sealed and the information is not made available.

2. Apply a similar net worth threshold to non-profit claimants, similar to what individuals are held to. My personal preference would be to eliminate reimbursement for any entity type, other than individuals. With Citizens United now allowing expanded growth of other entities dealing in both sides of issues, claims made by those groups will expand as those entities grow in popularity.

3. Require APA (Administrative Procedure Act) claims to be looked at separately from claims under other Federal statutes. As 1 Pointer mentioned, cases are often bundled with a huge number of claims, under many statutes, including the token APA claim of a missed deadline, improper notice, or other instance where a regulation that is governed by APA is overlooked, yet has no substantive impact on the larger claim being made. As a result, oftem times the APA claim is upheld and reimbursement is made for that single aspect, even if the substantive claims of the case were rejected by the court.

4. Improve the basis for which an entity can make a claim of standing in a case. Some ideas have been floated around that would require a plaintiff to have been involved in the process in order to have standing in a claim. It would prevent the groups who refuse to work during the process of planning and implementation from filing their claims after all other parties have come to collaborative agreement. I read in some recent legislative proposals; IIRC The Forest Jobs and Recreation Act had some language focused toward this.

Those would be some good starts, at least in my opinion. I am sure others will disagree. That is fine. That is what debates are for.

 

[Ben Lamb]

1,3 & 4 have some possibilities that I can see germinating into good concepts.

2, however, ignores the reality that a lot of the groups who file suits don't have much of a net worth. CBD, Defenders, etc do, but Alliance for the Wild Rockies, Native Ecosystems, Wild West, etc all have basically an office and a staff person. Their lawsuits constitute a large number of the suits we are talking about. How do you limit the amoun they can sue, while respecting the right of citizens to seek redress against their gov't?

And on the individual side, I can see a world where individuals file the suit, after the work is done by one of these orgs, and then they submit the bill for all of the work they had done.

Any system is rife for abuse. The key remains to get to a point where the abuses are minimized through better planning. Which once again means better funding for agencies to do their jobs rather than suffer from analysis paralysis.

 

[1_pointer]

Correct. I was not referring to complete removal of environmental lawsuits under EAJA, rather reimbursement of for those suits brought by non-profits that are over the net worth thresholds applied to claimants who are non qualified 501(c)(3).

Changes; here is what I think would be helpful. Others will have a different opinion than mine. Some have been mentioned.

1. Requirement that no case requesting reimbursement under EAJA can be sealed. Many cases and many settlements are sealed, so the GAO and other agencies cannot even give an accounting of who got paid. how much they got paid, and what claims of the case were recognized as being valid and thus allowed for reimbursement.

Anyone wanting to know how this process often times gets pulled away from the bright light of transparency, just Google GOA and EAJA reimbursements. You will find mountains of reports of how the GOA is not able to provide accurate information, for two reasons. One being as Ben Lamb mentioned, Congress removed funding for government-wide reporting. Other being that many cases are sealed and the information is not made available.

2. Apply a similar net worth threshold to non-profit claimants, similar to what individuals are held to. My personal preference would be to eliminate reimbursement for any entity type, other than individuals. With Citizens United now allowing expanded growth of other entities dealing in both sides of issues, claims made by those groups will expand as those entities grow in popularity.

3. Require APA (Administrative Procedure Act) claims to be looked at separately from claims under other Federal statutes. As 1 Pointer mentioned, cases are often bundled with a huge number of claims, under many statutes, including the token APA claim of a missed deadline, improper notice, or other instance where a regulation that is governed by APA is overlooked, yet has no substantive impact on the larger claim being made. As a result, oftem times the APA claim is upheld and reimbursement is made for that single aspect, even if the substantive claims of the case were rejected by the court.

4. Improve the basis for which and entity can make a claim of standing in a case. Some ideas have been floated around that would require a plaintiff to have been involved in the process in order to have standing in a claim. It would prevent the groups who refuse to work during the process of planning and implementation from filing their claims after all other parties have come to collaborative agreement. I read in some recent legislative proposals; IIRC The Forest Jobs and Recreation Act had some language focused toward this.

Those would be some good starts, at least in my opinion. I am sure others will disagree. That is fine. That is what debates are for.

#3 and #4 would be great! Together they would solve a whole passel of other issues as well.

 

[Oak]

Thanks for clarifying, Randy. You are correct in that we won't all agree on all of your suggestions. But at least we understand that you're not proposing a nuclear option.

 

[DeepCountry]

Just curious.... JoseCuervo, are you opposed to the non-profits having to open their books to show whether or not they have received reimbursements under the EAJA? Wouldn't transparency shed light on all of this contention? I would like to see whether or not this reimbursement issue has any truth, and how much? I can tell you that many of us, for a long time, have felt that most of this litigation IS a profit game. We believe that these organizations use our own taxpayer money against us. Let's dispel this 'myth' and open the books!!!

 

[Southwind]

Correct. I was not referring to complete removal of environmental lawsuits under EAJA, rather stopping reimbursement for those suits brought by non-profits that are over the net worth thresholds applied to claimants who are non qualified 501(c)(3).

Changes; here is what I think would be helpful. Others will have a different opinion than mine. Some have been mentioned.

1. Requirement that no case requesting reimbursement under EAJA can be sealed. Many cases and many settlements are sealed, so the GAO and other agencies cannot even give an accounting of who got paid. how much they got paid, and what claims of the case were recognized as being valid and thus allowed for reimbursement.

Anyone wanting to know how this process often times gets pulled away from the bright light of transparency, just Google GOA and EAJA reimbursements. You will find mountains of reports of how the GOA is not able to provide accurate information, for two reasons. One being as Ben Lamb mentioned, Congress removed funding for government-wide reporting. Other being that many cases are sealed and the information is not made available.

2. Apply a similar net worth threshold to non-profit claimants, similar to what individuals are held to. My personal preference would be to eliminate reimbursement for any entity type, other than individuals. With Citizens United now allowing expanded growth of other entities dealing in both sides of issues, claims made by those groups will expand as those entities grow in popularity.

3. Require APA (Administrative Procedure Act) claims to be looked at separately from claims under other Federal statutes. As 1 Pointer mentioned, cases are often bundled with a huge number of claims, under many statutes, including the token APA claim of a missed deadline, improper notice, or other instance where a regulation that is governed by APA is overlooked, yet has no substantive impact on the larger claim being made. As a result, oftem times the APA claim is upheld and reimbursement is made for that single aspect, even if the substantive claims of the case were rejected by the court.

4. Improve the basis for which an entity can make a claim of standing in a case. Some ideas have been floated around that would require a plaintiff to have been involved in the process in order to have standing in a claim. It would prevent the groups who refuse to work during the process of planning and implementation from filing their claims after all other parties have come to collaborative agreement. I read in some recent legislative proposals; IIRC The Forest Jobs and Recreation Act had some language focused toward this.

Those would be some good starts, at least in my opinion. I am sure others will disagree. That is fine. That is what debates are for.

These all sound reasonable to me.

 

[MThuntr]

It amuses me that these groups often support Wild Horses and Burros (aka Feral Livestock) and yet cattle are evil..."a rose of any other word would smell as sweet"

 

[JoseCuervo]

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[wa_archer]

There is a bill going to the senate currently after passing the house last November which would open up the books on re-payments by the government for litigation. I think it is a big step to opening the book and revealing if there is abuse in this system. My thought is that there is just like there are some that take advantage of unemployment and welfare in our country. The true meaning behind the program is positive it just needs to be corrected to stop abuse of the system.