Legal defense costs are an increasing drain on conservation funding today. Alarmed by the trend, the Boone and Crockett Club has launched a new examination of federal statutes that enable ongoing litigation at a high cost to wildlife and the American taxpayer.
The Club’s primary concern is the Equal Access to Justice Act (EAJA), which reimburses organizations that successfully sue federal agencies for non-compliance with federal law.
Although well intended, abuses of EAJA are escalating into a modern conservation issue with potentially severe long-term consequences.
“The Club was and is deeply involved in designing and now protecting the economic engines that drive conservation in America,” said the president of the Boone and Crockett Club, “Since the 1880s, we’ve been the guardian of the most successful wildlife conservation system in the world. It’s a system that depends on funding, and we take very seriously the fact that money and other resources intended to support conservation are being diverted elsewhere.”
EAJA was written to reimburse legal costs incurred by small nonprofit organizations along with for-profit organizations with net worth of less than $7 million. However, America’s two largest animal rights groups have filed numerous cases under EAJA even though their 2009 combined net assets exceeded $209.6 million and cash balances exceeded $44.5 million.
Another abuse uncovered by Baier: In 2008, an animal rights group won a legal ruling regarding wolves and petitioned a federal court in Missoula, Mont., for $388,370 in attorney fees. The judge awarded $263,099, which was based on an hourly rate of $300 — even though the federal limit is $125 per hour.
In 2007, the same litigant was awarded $280,000 following a similar case in the Great Lakes area.
The defendant in both cases was the U. S. Fish and Wildlife Service, whose budget — regardless of whether it’s spent on wildlife or lawyers — is financed by a combination of sportsmen fees and tax dollars.
Taxpayers bear all EAJA reimbursements to plaintiffs.
Indirect costs are considerable, too. Nearly all resource management proposals are now subject to ever-higher hidden fees as federal agencies spend more and more time and resources on elaborate environmental impact statements and other attempts to “suit proof” their decision-making processes. In some cases, where the intent of the lawsuit is to stop a proposed federal action, the delays and costs to a federal agency can derail time sensitive projects even if the eventual court ruling goes against the plaintiffs.
Along with wildlife, other public land- and water-based resource agencies that deal with energy, timber, agriculture, livestock and fisheries also are increasingly impacted by legal actions taken under the provisions of EAJA.
EAJA clearly encourages frequent legal challenges by some nonprofits that are, in reality, “big business.” These organizations are literally making their living by suing a variety of government agencies. Does EAJA, especially its payments to successful litigants with no reciprocal penalties for losses in court, still make sense today?
Baier’s preliminary study finds that EAJA needs intensive review. Appropriate modifications could help make laws that are more effective, efficient and resistant to courts deciding wildlife management policies via taxpayer subsidized lawsuits.
The Boone and Crockett Club will continue studying this problem.