Wolf Lawsuits

[bigeasygator]

This is something I have been meaning to ask and get clarity on for some time. It seems we have some pretty in the know folks on this board, and I've read multiple times how lawsuits are the money making engine for many of these anti-hunting organizations (especially as it has pertained to wolf management). What is the mechanism that allows these organizations to make money on these lawsuits? I'm assuming for this to happen these lawsuits would have to be funded with tax payer dollars. How is it that these groups that bring forth these lawsuits are allowed to recoup tax payer dollars and how is this different than any other lawsuit? This was something that always left me scratching my head and I was just looking for some more facts on the whole process. Thanks!

 

[MThuntr]

While I'm not necessarily "in the know" but it has to do mostly with the Equal Access to Justice Act (EAJA). Private citizens use this to be compensated for filing suit (and generally winning) against the US Government. My bet would also be that the publicity of lawsuits also gains donors and sympathy for their particular cause.

 

[smarandr]

My bet would also be that the publicity of lawsuits also gains donors and sympathy for their particular cause.

http://onyourownadventures.com/hunttalk/showpost.php?p=2341279&postcount=40

Real conservation organizations spend the vast majority of their funding on real conservation projects. These kinds of organizations spend it on litigation. Besides, who could say no to a face like that

 

[bigeasygator]

Based on some of the comments I've seen before, it seemed like the lawsuit costs were somehow their biggest cash generating mechanism and not necessarily donations (which could be given at anytime regardless of there being a lawsuit ongoing). Maybe I'm reading too far into some of the past posts I've read. I'll have to read up a bit more on the EAJA as well.

 

[jryoung]

Based on some of the comments I've seen before, it seemed like the lawsuit costs were somehow their biggest cash generating mechanism and not necessarily donations (which could be given at anytime regardless of there being a lawsuit ongoing). Maybe I'm reading too far into some of the past posts I've read. I'll have to read up a bit more on the EAJA as well.

What you are referring to is the EAJA. While, many of the serial litigants to get funds from the EAJA, I believe their greatest source of funds is the constant volley of emails to their constituents asking for donations. If they win, and can claim EAJA they get to double dip effectively.

In the United States of America, the Equal Access to Justice Act (EAJA) authorizes the payment of attorney's fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation "was substantially justified." 28 U. S. C. §2412(d)(1)(A). Section 2412(d)(1)(B) sets a deadline of 30 days after final judgment for the filing of a fee application and directs that the application include: (1) a showing that the applicant is a "prevailing party"; (2) a showing that the applicant is "eligible to receive an award"; and (3) a statement of "the amount sought, including an itemized statement from any attorney ... stating the actual time expended and the rate" charged. Section 2412(d)(1)(B)'s second sentence further requires the applicant to "allege that the position of the United States was not substantially justified." Scarborough v. Principi, 124 S. Ct. 1856 (2004).


http://en.wikipedia.org/wiki/Equal_Access_to_Justice_Act

 

[Big Fin]

The EAJA has a lot to it, but here are the pieces that are the cash cow for the wingnut groups.

Individuals and corporations are not allowed to seek reimbursement for "reasonable" legal costs if they exceed a certain net worth threshold. Makes sense; no need to Donald Trump to be reimbursed for legal expenses against the Federal Government.. And, if some poor little old lady is getting steam rolled by a Federal action, she should have some recourse for reimbursement to prevent abuse of those in her situation.

One big exception to the net worth rules - Non-profit organizations of any size can get reimbursement under the EAJA. As a result, you have no-profit organizations with net worth in the many millions of dollars getting reimbursement for these lawsuits. All they have to do is prevail in court.

To make sure they prevail in court, they don't tackle entire EA or timber sale, or whatever. They find some miniscule portion that they can prove is not properly researched or could be considered contrarty to other stated policies. Even if the entire plan is great, if they prevail on one little technical issue, they then get reimbursement and gum up the works for however long it takes the agency to fix it.

And here is how they make money. They get paid for "reasonable legal costs." What is reasonable? Whatever rate is allowed under law or the court.

So, you hire a bank of environmental attorneys, pay them $100K per year, or about $50 per hour. Have them work 1,500 hours on a project where you will prevail. Or at least have them record 1,500 hours, even if they only worked 300 hours.

Then if you prevail on the technical issue, you seek reimbursement of reasonable legal costs, which include attorney time, expert witness costs, copying, travel, filing fees, adminsitrative staff, etc. Say the "reasonable" fee is deemed to be $150 per hour.

In that case, the non-profit gets reimbursed for the employee attorney at $150/hour X 1,500 hours = $225,000. You have paid for their entire salary and benefits, plus a lot more, by prevailing on this one technicality. One hell of a good business model, plus it is all tax-free.

The Boone and Crockett Club has done mountains of research of abuse on this law. As a life member, I get their research writings and it is ridiculous how this law has been abused.

Simple solution - Do not allow any non-profit to be reimbursed under the EAJA. They are not to be quasi law firms. If they have an issue that worries them, they should be able to appeal to donors to fund the legal claim.

Here are some links from the B&C site. If this doesn't get you steamed, you are probably comatose.

http://www.boone-crockett.org/about/positions_EAJA.asp?area=about&ID=6B455080&se=1&te=1

http://www.boone-crockett.org/news/featured_story.asp?area=news&ID=96

I have talked at length to our delegation about it. They understand the issue. They also have explained how hard these big groups; not just environmental groups, but human rights and other social groups, would fight a change that removes non-profits from reimbursement.

 

[bigeasygator]

Thanks Randy. That help lays it out. As someone without firsthand experience on the issue, it was hard for me to understand how these organizations could make these ventures lucrative unless they were made up of lawyers. It's a lot easier to see how they can profit if they claim bogus legal expenses and pocket most of the proceeds. It has been beyond infuriating to see various cases stalled or tossed out on minuscule points that are not central or even relevant to the greater issue, and understanding how the machine works and under what act they are profiting helps shed light on the issue. My feeling is that the average Joe has absolutely no idea this is taking place.

 

[Big Fin]

..... My feeling is that the average Joe has absolutely no idea this is taking place.

I suspect that "feeling" stated above would be confirmed as fact if a survey of "average Joe" hunters was conducted. Very few I talk to have even heard of the EAJA, let alone know how it works.

 

[Ben Lamb]

Randy's done a good job laying out how EAJA can be abused, although I don't think the fees are out of line given the cost of a lawyer. These groups have to hire a law firm, like Earth Justice or the like, and those attorney's aren't cheap. Hell, the trust lawyer I'm using to put together our family trust is $250/hr.

Most of the attempts to "reform" EAJA have really been about gutting the program. That would be a huge mistake. Any time we remove the right of the people to seek redress against our Government should be viewed sideways at the least.

Other "fixes" would have left out the most egregious abusers of this good program: Groups like Alliance for the Wild Rockies, Wild West Institute, etc all have small enough budgets that they could continue to sue rather than follow what most of other big green groups are doing: Collaborate with the Forest Service & Timber industry.

 

[idahohuntr]

Very good overview of the topic. It is extremely frustrating and definitely an abuse that I wish were stopped. Filing lawsuits on every plan, EA, listing decision, rule change etc. is ridiculous. Unfortunately, it is a very lucrative business.

 

[Ben Lamb]

There was a "study" going around from Karen Budd Falen, an attorney notorious for filing these same kind of lawsuits but on the other side (mostly for industry trade groups, etc). That information was used widely by the more conservative sporting groups like the NRA & SCI to try and promote a bill that would have gutted the EAJA (SCI's lobbyist is a former O&G industry lobbyist who keeps very close ties to the industry). I'm not sure what information B&C used to come to their conclusions, but if they used the Falen info, then they should revisit the issue. Here's the Government Accountability Office's report of EAJA:

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

 

[ihuntelk]

I've been digging and can't find the 'jargon' I am looking for so I'm going to shoot from the hip.

I BELIEVE there is also a timeframe under EAJA in which the feds have to respond to the litigant's lawsuit. This timeframe to respond is completely unattainable, especially since all Federal Agencies have to follow the rules set forth by our lovely lawmakers. With mandatory public meetings, public comment periods, etc. there is no feasible way to respond to the litigant's concerns in the allowed timeframe. The fed agencies have less time to respond than all the public meetings and comments periods cover. If they do not respond in the 'required' amount of time, then the 'non-profit' gets it's attorney fees paid, regardless of outcome.

I'll keep digging to try and find the answer. Hopefully someone can verify my claims or set me straight. I'm open to either...............

- Cade

 

[one ate E grain]

ihuntelk you have the basic blue print for what the Center for Biologic Diversity and to a lesser extent Earth Justice have been up to for the past few years. To such an extent that the FWS made a deal with them to complete so many applications for Endangered Species by such and such a date if they'd stop filing in court.

What that gives us is individuals like Kieren Suckling dictating how our Fish and Wildlife Service is going to act. Wingnut doesn't begin to describe Kieren, and he doesn't pay lawyers $250 an hour, he hires them out of law school for wages half of what they'd get otherwise, which isn't much anyway. They've become so good at filing these things that they can crank them out on a production line basis.

Average annual spending per endangered species is about 50K, when the FWS spends millions trying to delist some charismatic predator a truly endangered species really does go wanting. We are facing extinctions at an accelerating rate. We've no resources to waste on environmental groups.

Looking at Ben's link the vast preponderance of EAJA settlements go to ESA litigation. That's 21 out of ever 27 dollars spent and the EAJA is a good piece of legislation overall. Protects all kinds of people against arbitrary govt actions, but it's broken and needs fixing. The EAJA was not intended to fund first cousins to the Animal Liberation Front.

 

[idnative1948]

Speaking of Wolf Lawsuits

http://www.idahostatesman.com/2014/01/07/2960859/wildlife-groups-sue-over-hunter.html#

 

[Elkmagnet]

They will stick their head in every loophole fish&game makes. Now if we could just get them to start making nooses instead of loopholes.

 

[katqanna]

While not familiar with an industry of lawsuits, I do know that there are times you have to sue to protect the public land and public trust wildlife. For example, I have been researching the goings on of the elk brucellosis management program here in Montana, which turned out to be not just Montana, but included Wyoming and Idaho - the 3 GYA states. I found all the documents that showed that USDA APHIS forced each state to sign on to brucellosis eradication in wildlife - elk (other cervids like deer and moose) and bison, in order for the state to have the Brucellosis Class Free status. These Brucellosis Management Plans throw our wildlife under the bus for a marketing tool. In addition, they are funneling hundreds of thousands of federal taxpayer dollars through an agency organization that died in 2007, to each GYA state's department of livestock or agriculture - specifically to eradicate brucellosis in wildlife.

I requested several years of these BMP's, along with each years Memorandum of Understanding that the Governor, DOL and FWP have to sign on to (Joe Maurier signed the 2010 document I have). Montana has refused to supply these. The APHIS 30 day deadline for the FOIA passed on Monday. While I am giving the APHIS executive office 2 more days to provide my requested documents (per phone conversations, their obstruction appears to be Montana APHIS office), I may be forced to sue, in 2 days, for the public information to protect our elk and bison, that has been kept from us. Wyoming and Idaho's BMP's are online, but not Montana's.

While I understand and sympathize with Randy's explanation of the litigation aspect and the abuses that can occur, I have spoken with varied retired wildlife/ agency personnel and they have stated that many times, they were directed to do something that violates laws, like requiring a MEPA/NEPA, for example, and unless someone from the public gets wind and forces the agency to comply, its doesnt happen. After exhausting all other channels, sometimes litigation is all you are left with.

 

[jryoung]

While I have no sympathy of Defenders of Litigation, I am curious about the legality of this one. I'm not smart enough to interpret these nuances so we'll see what a judge says.

Probably pretty hard to reach this guy for an injunction though LOL.