Simpson vs Labrador

[6speed]

Interesting article

http://magicvalley.com/news/local/g...cle_0c037193-6285-5f6f-901b-d98412b35f15.html


“I’m not sure you want to turn all the federal lands over to the state government and then have none of the federal laws apply,” he said.


In Simpson’s view, the problem is that some federal laws that were passed for good reason, such as the Endangered Species Act, have gotten too cumbersome in their implementation. The threat of lawsuits from some environmental groups, especially, has greatly complicated federal land management decisions.

Simpson pointed to the Equal Access to Justice Act — which requires the government to pay attorneys’ fees if it loses in court unless the government shows it was “substantially justified” in its position — as something that needs to be reformed, saying it has “created a cottage industry” of lawsuits.

Makes a guy wonder if Simpson is a Huntalk Podcast fan?

 

[Ben Lamb]

Mike Simpson has been a leader for the west for a long time. He was instrumental in getting wolves delisted in 2011, and he's been the kind of guy who brings people together to solve thorny issues. I don't agree with everything he does or says, but I like him. His Boulder -White Clouds bill is a good example of that.

I'm not fond of EAJA reform, as I think there are better ways to get litigation out of the natural resource management world without reducing a citizen's right to sue their government, and hopefully, some of those reforms can move forward over the EAJA dog-whistle.

 

[RobG]

I'm not fond of EAJA reform, as I think there are better ways to get litigation out of the natural resource management world without reducing a citizen's right to sue their government, and hopefully, some of those reforms can move forward over the EAJA dog-whistle.

Like you, I don't like many of the lawsuits, but without EAJA all these "conservation plans" (e.g. grizzly) won't be worth the paper they are written on. They keep the government accountable to what they promise and nobody has offered an alternative that would offer that protection.

 

[6speed]

I'm not fond of EAJA reform, as I think there are better ways to get litigation out of the natural resource management world without reducing a citizen's right to sue their government, and hopefully, some of those reforms can move forward over the EAJA dog-whistle.

So what would those better ways be?

 

[Ben Lamb]

So what would those better ways be?

I haven't seen a specific bill that would be the golden ticket to end frivolous lawsuits but if I were the Legislative & Executive Branch for a day I would:

1.) Fund our agencies so that they don't spend all of their resources fighting against litigation or suffering from lack of resources to properly write EA's, EIS's and other project proposals. One of the key factors for litigants in winning these lawsuits are not that they sue on the merit of the project, but on a technicality related to how it was drafted. When we make our agencies write more proposals with fewer people, mistakes are bound to happen. Restoring proper funding along with more people working on the proposals will reduce those technicalities that the serial litigants sue on.

2.) Fund local collaboratives and provide some path to completion through funding those partnerships and ensuring that their proposals meet or exceed NEPA requirements to become implemented.

3.) More programs like the Forest in Focus program that was included in the 2013 Farm Bill that help ensure expedited projects based on their impact to the environment. This doesn't mean green-lighting large scale clear cuts, but the multitude of backlogged infrastructure projects that are sitting there, waiting to be enacted on.

4.) Clear backlog of Wilderness Study Areas with either Wilderness Designation or release when warranted. WSA's were not meant to be de-facto designations, but a stop-gap to prevent further degredation of an area until Congress would act. Given Congresses inaction, we have defacto Wilderness Areas without the designation. I'm a fan of protected country, especially as Wilderness, and I love WSA's for hunting and recreaton, but it's time to figure out what to do with those areas. TRCP has a good idea with a back-country designation, or you could even use the Conservation Management Area description used in the Rocky Mountain Front Heritage Act if those lands don't quite meet the Wilderness threshold.

I'm sure there are others with better ideas and hopefully they will chime in as well.

 

[Nameless Range]

4.) Clear backlog of Wilderness Study Areas with either Wilderness Designation or release when warranted. WSA's were not meant to be de-facto designations, but a stop-gap to prevent further degredation of an area until Congress would act. Given Congresses inaction, we have defacto Wilderness Areas without the designation. I'm a fan of protected country, especially as Wilderness, and I love WSA's for hunting and recreaton, but it's time to figure out what to do with those areas. TRCP has a good idea with a back-country designation, or you could even use the Conservation Management Area description used in the Rocky Mountain Front Heritage Act if those lands don't quite meet the Wilderness threshold.

I think this is important. I think we need to find different designations other than wilderness. The wilderness movement is dead in the water, largely because of what new wilderness would mean for one of the fastest growing recreational activities in the west - that being mountain biking. Mountain bikers, who are a typically "green" contingency, don't want a damn thing to do with wilderness. Neither do snowmobilers. It's why all or nothing ideas like NREPA are going nowhere.

IMO, Conservation Management Areas, or, like were in the FJRA -Recreation Management Areas, need to be a more utilized as a land management designation with many of those areas that are currently inventoried roadless. It doesn't effect hunting, it doesn't really effect wildlife that negatively, and it keeps motorized use which has some of the more negative effects, out. This would be preferable to the temporary designation of Inventoried Roadless, and would be a permanent and satisfactory compromise.

 

[jryoung]

Would seem simple enough to apply a net worth/balance sheet test to the litigants. The CBD ended 2015 with nearly $15M in cash, most of it unrestricted. Additionally they had roughly a 27% "margin" (non-profits are slightly different in that they don't typically have Sales and COGS).

 

[Elkmagnet]

What is a polar opposite?

I'll take politics in agriculture for $600

 

[1_pointer]

I haven't seen a specific bill that would be the golden ticket to end frivolous lawsuits but if I were the Legislative & Executive Branch for a day I would:

1.) Fund our agencies so that they don't spend all of their resources fighting against litigation or suffering from lack of resources to properly write EA's, EIS's and other project proposals. One of the key factors for litigants in winning these lawsuits are not that they sue on the merit of the project, but on a technicality related to how it was drafted. When we make our agencies write more proposals with fewer people, mistakes are bound to happen. Restoring proper funding along with more people working on the proposals will reduce those technicalities that the serial litigants sue on.

2.) Fund local collaboratives and provide some path to completion through funding those partnerships and ensuring that their proposals meet or exceed NEPA requirements to become implemented.

3.) More programs like the Forest in Focus program that was included in the 2013 Farm Bill that help ensure expedited projects based on their impact to the environment. This doesn't mean green-lighting large scale clear cuts, but the multitude of backlogged infrastructure projects that are sitting there, waiting to be enacted on.

4.) Clear backlog of Wilderness Study Areas with either Wilderness Designation or release when warranted. WSA's were not meant to be de-facto designations, but a stop-gap to prevent further degredation of an area until Congress would act. Given Congresses inaction, we have defacto Wilderness Areas without the designation. I'm a fan of protected country, especially as Wilderness, and I love WSA's for hunting and recreaton, but it's time to figure out what to do with those areas. TRCP has a good idea with a back-country designation, or you could even use the Conservation Management Area description used in the Rocky Mountain Front Heritage Act if those lands don't quite meet the Wilderness threshold.

I'm sure there are others with better ideas and hopefully they will chime in as well.

I'd be behind #2-4 as written 100%!!! I don't have much of a problem with #1, but many of the technicalities that are troublesome are due to the courts, IMO, mis-interpretation of the laws/rules which can then set precedence. NEPA and the protest/appeal process could easily be updated to make the process more transparent and streamlined for the benefit of the agency and those appealing their decisions. Part of this, 'twer I King, would be to raise the hurdle on what constitutes standing for an appeal. APA has been a tripwire more than once...

 

[Ben Lamb]

Would seem simple enough to apply a net worth/balance sheet test to the litigants. The CBD ended 2015 with nearly $15M in cash, most of it unrestricted. Additionally they had roughly a 27% "margin" (non-profits are slightly different in that they don't typically have Sales and COGS).

What about groups like Alliance for the Wild Rockies, Wild West Institute, etc? They don't have much of anything in terms of net worth/balance sheets yet they are some of the groups that cause the biggest headaches in terms of lawsuits filed regarding public land management.

 

[Ben Lamb]

I'd be behind #2-4 as written 100%!!! I don't have much of a problem with #1, but many of the technicalities that are troublesome are due to the courts, IMO, mis-interpretation of the laws/rules which can then set precedence. NEPA and the protest/appeal process could easily be updated to make the process more transparent and streamlined for the benefit of the agency and those appealing their decisions. Part of this, 'twer I King, would be to raise the hurdle on what constitutes standing for an appeal. APA has been a tripwire more than once...

There we go. That's another bite at the apple that could be very productive. I know the serial litigants cry foul whenever standing is changed to increase accountability on the groups who want to sue. I'm all for ensuring that the people suing have had the proper skin in the game.

 

[1_pointer]

There we go. That's another bite at the apple that could be very productive. I know the serial litigants cry foul whenever standing is changed to increase accountability on the groups who want to sue. I'm all for ensuring that the people suing have had the proper skin in the game.

And I'm fine with that "skin" being, at least partially, monetary...

 

[Ben Lamb]

And I'm fine with that "skin" being, at least partially, monetary...

We're going to need a pretty iron-clad definition of what that means. Does it mean if you can't afford to bond, you can't seek redress against your gov't? That would be ruled unconstitutional pretty quickly.

If you predicate it on money in the bank, you still end up being discriminatory against those with funds.

Take for example a local RMEF chapter that sues the FS for ignoring elk security standards in a travel plan or forest plan. It's a volunteer group with very limited funds. Should they have to post a bond to sue? It's not the National RMEF that's suing, but a chapter that isn't tied to the organizational bank account, remember.

 

[Big Fin]

We're going to need a pretty iron-clad definition of what that means. Does it mean if you can't afford to bond, you can't seek redress against your gov't? That would be ruled unconstitutional pretty quickly.

If you predicate it on money in the bank, you still end up being discriminatory against those with funds.

Take for example a local RMEF chapter that sues the FS for ignoring elk security standards in a travel plan or forest plan. It's a volunteer group with very limited funds. Should they have to post a bond to sue? It's not the National RMEF that's suing, but a chapter that isn't tied to the organizational bank account, remember.

A couple comments on the RMEF example, which is not a good example for the point Ben is trying to make. With RMEF, and with many national groups, the local chapter has no official organizational charter, so a local chapter could not enter into any action on behalf of the national organization. That is how most the hunter-based national conservation groups are structured, so it is not an example that has any practical possibility.

A few are structured in a way that would work for Ben's example, but RMEF is not one of them.

Here are the current thresholds for reimbursement under EAJA. Individuals it is $2 million. Business entities it is $3 million. Non-profits there is no threshold. There is not problem with placing the non-profit groups under one of the other thresholds applicable to individuals or businesses.

I find it interesting that the defense for any reform of this law gets yelled at as a plan to take away the rights of citizens to sue their government. Some use the term "hold government accountable." Fine, whatever term one wants to use. Point is, none of the tweaking that is being advocated to make EAJA less abusive in the context of ESA, NEPA, and other Federal regulations would take away the right of citizens to hold their government accountable. Nobody is advocating to repeal EAJA. Nobody is advocating reducing the ability for grandma to keep Uncle Sam from forcing her off the farm without process and fair value. Those who state otherwise are using grandma as the straw man argument.

What is being advocated is to make this law more within the original intent for which it was designed. Those who have created cottage industries, very profitable cottage industries, by using EAJA to consolidate huge amounts of control within a very small circle of influence are the ones screaming the loudest to even a slight change.

When the MOGA crowd tried to keep me off the RMEF Board of Directors I was given a great piece of advice. It was this advice given by a retired Vietnam fighter pilot; "You know you are over a valuable target when the flack gets really heavy."

In the case of EAJA, I surmise that those advocating reform are over a very valuable target. The amount of flack that comes when EAJA reform is discussed is a good indicator of how much financial value and control is placed on this by the current beneficiaries of the status quo.

 

[RobG]

Fin - can you provide the data that makes you conclude these are "very profitable cottage industries"?

 

[RobG]

How does the salary of the CEO of CBD compare with David Allan's salary?

 

[Ben Lamb]

Randy,

Thanks for the clarification. I only chose RMEF as to have a group folks could relate too. it would work with BHA chapters, MDF, DU or others just as easily.

I've never received an EAJA payment. As far as I know, I've never filed a lawsuit or signed on to one that would recieve EAJA funding when I worked for organizations, but I do think it's important that how EAJA is reformed does not reduce the ability for citizens to seek redress against their gov't. That doesn't mean I don't support efforts to reform the process that enables the serial litigants to hold up good projects. GIven the history of the issue, and knowing who is most against EAJA as a program, I think a heavy dose of skepticism is warranted. There are ways to get to the desired outcome that might be more difficult in the short term, but have greater impact in the long term without touching the sacred cow.

 

[1_pointer]

We're going to need a pretty iron-clad definition of what that means. Does it mean if you can't afford to bond, you can't seek redress against your gov't? That would be ruled unconstitutional pretty quickly.

If you predicate it on money in the bank, you still end up being discriminatory against those with funds.

Take for example a local RMEF chapter that sues the FS for ignoring elk security standards in a travel plan or forest plan. It's a volunteer group with very limited funds. Should they have to post a bond to sue? It's not the National RMEF that's suing, but a chapter that isn't tied to the organizational bank account, remember.

Again, 'twer I King and made the rules, I wouldn't make one on posting a bond to appeal. I would make one that you will have to pay $$ if you lose. What's good for the goose is good for the gander.

 

[Big Fin]

Fin - can you provide the data that makes you conclude these are "very profitable cottage industries"?

What are you looking for in terms of "data" that you would accept?

The rates CBD pays their attorneys, compared to the rates by which they get reimbursed?

The total dollar amounts paid to these groups?

Let me know and I will do my best to provide it to you, from what is available. Note, many times these groups ask that the case be sealed, so nobody is allowed to see what amount is paid, to whom it is paid, an for what claims it is paid.

 

[RobG]

Randy,

Thanks for the clarification. I only chose RMEF as to have a group folks could relate too. it would work with BHA chapters, MDF, DU or others just as easily.

I've never received an EAJA payment. As far as I know, I've never filed a lawsuit or signed on to one that would recieve EAJA funding when I worked for organizations, but I do think it's important that how EAJA is reformed does not reduce the ability for citizens to seek redress against their gov't. That doesn't mean I don't support efforts to reform the process that enables the serial litigants to hold up good projects. GIven the history of the issue, and knowing who is most against EAJA as a program, I think a heavy dose of skepticism is warranted. There are ways to get to the desired outcome that might be more difficult in the short term, but have greater impact in the long term without touching the sacred cow.

There you go. Far more important than the level of flak is who is trying to get you to snuggle with them in bed.