EAJA is new form of environmental lawsuit abuse

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AFRC News,
American Forest Research Council

In a brief filed on October 30, attorneys representing defendant-intervenor Silver Creek Timber
Company asked the Ninth Circuit Court of Appeals not to pay the exorbitant attorneys fees
demanded by EarthJustice under the Equal Access to Justice Act (EAJA) for its work in defense
of the Clinton Roadless Rule. EarthJustice is seeking $189,412 in attorney fees for filing a single
answering brief and oral argument in what Silver Creek’s attorneys characterize as “a garden
variety” case. Although the EAJA was designed to protect the ability of ordinary citizens to seek
redress for government misconduct, evidence filed by Silver Creek shows that EarthJustice is no
ordinary citizen. It has $35,922,744 in net assets, including nearly $1.2 million invested in an
offshore limited partnership and $26 million in corporate stock. The attorney fee demand seeks
between $500 and $600 per hour for EarthJustice’s in-house attorneys, nearly three times the
statutory rate allowed under the Act and in far excess of the prevailing rate for private attorneys
doing this work.

The issue of abuse of the EAJA by well-heeled environmental organizations using taxpayer
dollars to fund lawsuits against the government was the subject of a November 3 letter from the
Western Congressional Caucus to U.S. Attorney Eric Holder. Twenty-three Representatives and
Senators expressed concern that “organizations with a narrowly focused political agenda
regarding the management of public lands in the west are abusing the Congressional intent of the
EAJA.” The letter stated that since 1995, there has been a lack of Congressional oversight of
EAJA expenditures and called on the Department of Justice to develop a central, publicly
searchable database of organizations receiving funds and the amount paid out by the government.

A copy of the letter is available Here.

Recent studies by Wyoming attorney Karen Budd-Falen shows that Forest Service Regions 1, 5
and 6 paid out over $1 million in EAJA funds between 2003 and 2005. Budd-Falen found that
the EarthJustice Legal Foundation and Western Environmental Law Center are seeking attorneys
fees and costs totaling $479,242.05 for their work on the recently concluded Northern California
District Court case against the Forest Service planning rules. The case resulted in the agency’s
withdrawal of the 2008 rules, involved no trial work and was not appealed to the Ninth Circuit.
The study is available here.

AFRC shares the concerns of the members of the Western Caucus and the Western Legacy
Alliance. We have suggested that Congress remove this incentive to litigation that has
gridlocked management of our nation’s natural resources. Others have suggested
reimbursements be limited to the hourly rate paid to public defenders, thus placing the defense of
natural resource values on the same footing with the defense of human liberty. /Ann Forest Burns