Elk NetworkEqual Access to Injustice

Bugle | September 9, 2021

This article appears in the September/October 2021 of Bugle Magazine

Congress created the Equal Access to Justice Act to give everyday Americans a fair shot. But it’s been hijacked into a lawsuit factory where environmental groups fuel their agendas with taxpayer money.

When the federal government listed grizzly bears as threatened in the Lower 48 under the newly minted Endangered Species Act (ESA) in 1975, an estimated 136 grizzlies remained in the nearly 6 million acre Greater Yellowstone Ecosystem (GYE). Since female grizzlies don’t reproduce until they’re at least four years old and only have litters of two to three cubs every three years or so, extinction loomed as a real possibility. Over time, though, those protections worked.

By 2007, U.S. Fish and Wildlife Service (USFWS) scientists estimated the GYE population had quadrupled to more than 500 bears and expanded its range by more than 50 percent. This exceeded all of the federal recovery criteria and the USFWS removed the Yellowstone grizzly population from threatened status. In short, the ESA functioned exactly as it was designed.

Of course, the story didn’t end there. Environmentalists immediately sued, citing uncertainty regarding food sources. A judge agreed and returned them to fully protected status.

Subsequent research showed that the bears adapted well, overcame the perceived food challenges and continued to grow in numbers and range. In 2017, citing an estimated population of 750 bears and further expansion of occupied range—again exceeding all delisting criteria—he Department of Interior removed grizzlies’ threatened species status once more, returning management of the great bears to the three state wildlife agencies in the Greater Yellowstone.

Once again, a slew of environmental groups took their arguments to court. In 2018, a federal judge cited technicalities and ordered the population be relisted again. The federal government and states of Idaho, Montana and Wyoming intervened on behalf of delisting, and the Rocky Mountain Elk Foundation and the Sportsmen’s Alliance Foundation filed a brief in support of delisting to the Ninth Circuit of Appeals. However, the court upheld the relisting decision in July 2020. In April 2021, biologists from both the USFWS and Interagency Grizzly Bear Committee revised the estimated grizzly population in the GYE to upwards of 1,000 bears. That’s almost a tenfold increase from where the population stood when they were listed as threatened 46 years ago.

The delist-relist ping-pong is frustrating enough. But here’s one more especially galling detail: you’re paying for it.

Citing the Equal Access to Justice Act (EAJA) in that most recent round of litigation, environmental groups filed requests to be reimbursed for “reasonable” attorney fees up to $460 an hour. A few of those groups include the Alliance for Wild Rockies, Center for Biological Diversity, Humane Society of the United States, Sierra Club and WildEarth Guardians. The total combined ask amounted to more than $1.4 million in taxpayer money.

“The really unfortunate thing is when these groups win, the Department of Justice negotiates the fees, but it’s the individual agency that must pay. So, in this case, it would impact the budgets of the U.S. Fish and Wildlife Service, but in other cases it could be the Forest Service, Bureau of Land Management or another federal agency,” said Blake Henning, RMEF chief conservation officer. “All of those agencies are already underfunded, and this just hurts them more, which means they don’t have staff to adequately review issues, which leads to more and more lawsuits. It’s become what amounts to a ridiculous, non-stop merry-go-round ride.”

Looting Agency Funding

Imagine discovering someone is picking your pocket without you even knowing about it. That scenario has played out time and time again in federal courts across the United States. It’s a ploy successfully utilized by environmental groups that take advantage of the Equal Access to Justice Act. A measure created four decades ago to serve and benefit everyday Americans has been transformed into something far different.

To gain a better understanding of the EAJA, we must examine its roots. In the 1950s, Americans demanded governmental action for better stewardship of our nation’s air, land and water. One of the first key pieces of legislation to result was the Air Pollution Control Act (1955) followed by the Clean Air Act (1963). The Water Quality Act came two years later, holding states responsible to meet standards for water in their rivers, lakes and streams, including those waterways that flowed beyond their borders. The Motor Vehicle Air Pollution Control Act (1965) amended the Clean Air Act and set standards for vehicle emissions. In 1966, the Endangered Species Preservation Act created regulations to protect fish and wildlife species in danger of extinction.

The 1970s saw the creation of the National Environmental Policy Act (1970), a requirement that federal agencies prepare an environmental impact statement for any action or legislation that could adversely affect land, water or wildlife. Later that same year, an executive order from President Richard Nixon created the Environmental Protection Agency (EPA), an independent executive federal agency with a mission to protect human health and the environment. Building on previous legislation, the Clean Water Act (1972) sought to further reduce and eliminate pollution in our nation’s waters, while the Endangered Species Act (1973) focused on protecting crucial ecosystems for imperiled wildlife, fish and plant species.

Those actions helped set the table for Congress to enact the Equal Access to Justice Act in 1980. It authorized the payment of “reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees” to a party that wins a civil lawsuit against a federal agency by successfully demonstrating a threat of injury or irreparable harm.

“EAJA was passed primarily in response to demands from the small business community, which was laboring under the increased environmental, consumer and health and safety regulations of the 1960s and 1970s,” said Lowell E. Baier, an attorney in Washington, D.C., and the author of the 2015 book Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle Over America’s Lands, Endangered Species and Critical Habitats. “The concern was that when an agency such as OSHA or the EPA improperly fined a small business, the small business might win in court but be bankrupted by having to pay its lawyers.”

Baier points out that EAJA also applies to veterans seeking benefits from the Department of Veterans Affairs (VA) as well as the Social Security Administration (SSA). In fact, the vast majority of people garnering funds from the EAJA have been veteran or senior citizen beneficiaries suing the SSA or VA. Their awards average just a few thousand dollars each. But those payouts make a real difference for people who have no other remedy to receive the benefits they deserve. As a result, EAJA remains a critically important law for the everyday American.

According to Baier, the intent behind the law has not changed much over the 41 years since its passage, but the nature of its use certainly has. The EAJA included a cap on the net worth of any person or company that may benefit from it to make sure it serves real needs. However, in the final stages of establishing the EAJA, a last-minute amendment opened the door for nonprofit organizations to use it regardless of their net worth. This distinction grew murkier after 1995, when Congress eliminated a provision requiring annual reports of expenditures under EAJA. This opened the door for environmental groups to receive EAJA awards without the public ever realizing it.

“That set up a situation where environmental groups worth hundreds of millions of dollars could have their legal fees covered in cases where they used procedural laws like the National Environmental Policy Act to delay government projects they opposed for philosophical or political reasons. And in most cases, the money would be paid to the environmental group in a lump sum as part of a settlement agreement, with little if any oversight by the court, and then just disappear,” said Baier. “In theory, the law has a cap on fees, but that can be waived for lawyers with special expertise, such as in environmental law, when they’re paid market rates. We’ve documented numerous cases where payments were in the hundreds of thousands of dollars, and even over a million dollars in some cases.”

Beginning in 2012, a bipartisan Congressional effort required the Department of Interior to disclose EAJA payments, and the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019 permanently restored EAJA reporting throughout the entire federal government. Baier says this greatly reduced litigation from many organizations because they did not believe the negative publicity was worth the money. He also quoted Justice Louis Brandies who said, “Sunlight is the best of disinfectants.” Still, such litigation does persist—with some groups continuing to thrive on it.

Sue, Brag, Profit

Not only do litigant groups generate money from attorney fees but they then use that financial windfall to bankroll large marketing campaigns to solicit more donations based on court cases.

“Environmental groups use the ESA, and challenges to decisions under the ESA, as incredibly effective fundraising tools,” said Pat Crank, former Wyoming attorney general and vice president of the Wyoming Game and Fish Commission, while testifying before the U.S. Senate Committee on Environment and Public Works in 2020. “They challenge any delisting of the GYE grizzly for reasons that ignore the amazing success story of the GYE bear recovery. Every challenge leads to millions of dollars pouring into their coffers.”

It’s a cycle that has repeated itself year after year. In 2012, a report compiled by the U.S. House Natural Resources Committee used data from the Department of Justice to show that the federal government defended more than 570 ESA-related lawsuits over a four-year period (2009-2012) which cost American taxpayers more than $15 million in attorney fees. This occurred during a window when all of the environmental groups mentioned above were especially active, including several that filed multiple lawsuits seeking to stop the state management of wolves in the northern Rockies.

“According to the Department of Justice, some attorneys were reimbursed up to $500 an hour and two lawyers each received more than $2 million in attorney fees from ESA cases,” the report stated. “This data provides further evidence that the ESA has become litigation driven, where money and resources are spent addressing endless, frivolous lawsuits instead of species recovery.”

 

Conservation Doesn’t Happen in Courtrooms

Late in the 20th century and continuing into the 2000s, many Americans frowned upon environmental organizations due to their litigation-heavy reputation. So, many of those same environmental groups consciously shied away from the terms environmentalism or environmentalist and replaced them with conservation and conservationist. Among the more notable offenders are the Alliance for the Wild Rockies (no attorney list on its website), Center for Biological Diversity (46 attorneys), Defenders of Wildlife (8-10 attorneys), Earthjustice (143 attorneys), Humane Society of the United States (“dozens” of attorneys), Sierra Club (legal staff of 104) and WildEarth Guardians (legal staff of 15). It comes as no surprise that these seven groups filed almost half of the more than 570 lawsuits in the 2012 report.

The Center for Biological Diversity (CBD) based in Tucson, Arizona, topped the 2012 report’s list of “most litigious organizations” with 117 ESA-related lawsuits. CBD now proudly boasts a “Trump Tracker,” a listing of all 266 environmental lawsuits it filed against the U.S. government during the 1,461-day Trump administration. That equates to one new legal action filed every 5.5 days!

In one suit filed on June 27, 2019, CBD called on the federal government to forcibly introduce grizzlies into Texas, California, Arizona, New Mexico, Nevada, Utah, Colorado, Wyoming, Montana, Idaho, Oregon and Washington. Proposed release locations include the Grand Canyon, California’s Sierra Nevada and Montana’s Northern Continental Divide Ecosystem where there are already more than 1,000 grizzlies. On December 16, 2020, CBD filed lawsuit #255 to force grizzlies into the Cascade Mountains of Washington, even after the Department of Interior previously hosted numerous public meetings and received overwhelming local feedback against such action.

The transition to the Biden administration has not slowed this machine. In fact, it has accelerated. As of April 7, 2021, CBD publicly proclaimed it filed 43 lawsuits against the federal government—an average of one new legal action every 1.8 days!

To get an overarching picture of what is happening, the Administrative Conference of the United States, an independent federal agency that develops recommendations to improve administrative process and procedure, found 15 federal agencies paid more than $58 million in awards of attorney’s fees and other expenses under EAJA during Fiscal Year 2019. Again, that $58 million comes out of the pockets of America’s taxpayers.

A Clear Case of Stonewalling

Dating back to 2010, the U.S. Forest Service started conducting studies to formulate a plan for a future habitat enhancement project on the Helena-Lewis and Clark National Forest in west-central Montana. Called the Stonewall Vegetation Project, the goal was to treat unnaturally dense stands, reduce fire hazard, create forest resiliency and enhance wildlife habitat while improving overall forest health. Locals formed a collaborative group several years later that included government representatives, conservationists, lumber companies and other interested participants.

Relying on science, the collaborative agreed to a series of treatments to address thousands of acres of beetle-killed lodgepole stands to help reach project goals. RMEF was and remains extensively involved in the immediate area, having completed more than two dozen habitat enhancement projects over the last 15 years ranging from forest thinning to prescribed burns and other treatments that enhance wildlife habitat.

Two anti-management environmental groups, the Alliance for the Wild Rockies and Native Ecosystems Council, did not participate in the collaborative effort but instead waited for it to end and then cited the ESA to file a lawsuit against the Forest Service claiming forest management activity would endanger Canada lynx and grizzly bear populations. RMEF sought to join its collaborative partners by writing a brief in support of the project. However, a federal judge agreed with environmental groups and issued a preliminary injunction on May 30, 2017.

Halting the project before it began, the judge stated, “The Court acknowledges that Defendants have presented evidence that the Project area is susceptible to severe and intense wildfires due to elevated fuel levels caused by ‘heavy accumulations of dead and down timber.’ However, though there is the possibility of serious fire activity within the boundaries of the Project, there is no indication that this area is at risk of imminent fire activity.”

Mother Nature had other ideas. In July of 2017, lightning sparked what became known as the Park Creek Fire. Fueled by dead timber, the 18,000-acre wildfire scorched the project area, closing national forest lands and triggering evacuation orders. The Forest Service decided to go back to the drawing board to reassess the impacts of the wildfire on the project, effectively halting the suit.

Three years later, a Forest Service budget report showed the litigating environmental groups in the Stonewall case exploited the Equal Access to Justice Act to receive $100,500 in attorney fees. Specifically, the three lawyers involved in that case requested fees at rates of $290, $355 and $390 per hour. That same report also showed environmental groups, as a whole, received more than $9 million in attorney fees and settlement awards between 2011 and 2018, often at the expense of forests, wildlife, communities and American taxpayers.

The Forest Service revised the Stonewall project in 2019 and issued both a supplemental environmental impact statement and record of decision, but the same two environmental groups filed yet another lawsuit, this time in December 2020.

Is that conservation? Or is it equal access to injustice? And where do we go from here? The original intent of the EAJA was unquestionably sound, as were the reforms delivered under the Conservation, Management, and Recreation Act of 2019. The great majority of the people who benefit from EAJA do indeed receive justice and are fully deserving.

What needs to change is the cynical niche industry fueled by litigation that reaps windfalls from taxpayers picking up their attorney’s fees, then makes even more through fundraising campaigns bragging about that success. In the end, there are suers and doers. RMEF is proud to stand squarely in the second camp.

Stolen Identities

What is particularly vexing, and especially perplexing for the general public, is the hijacking of the word conservation by environmental groups. CBD, for one, refers to itself as “a national, nonprofit conservation organization.” Others do the same, although hats off to the Sierra Club for identifying itself as what it really is – a “grassroots environmental organization.” Some media outlets further the confusion by referring to environmental groups as conservation groups.

Merriam-Webster defines conservation as “planned management of a natural resource to prevent exploitation, destruction or neglect.” Cited examples include water conservation and wildlife conservation. In other words, conservation is the hands-on stewardship of natural resources such as habitat enhancement and permanent protection of vital migration corridors and winter ranges.

Environmentalism on the other hand, again according to the Merriam-Webster Dictionary, is “advocacy of the preservation of the natural environment.” Preservation often refers to a hands-off approach or preventing any type of management activity.

There are swaths of designated wilderness and other backcountry areas that remain relatively untouched for very good reason. However, there are millions of acres of public forests that are overly dense with heavy fuel loads and downed deadfall due to decades of fire suppression. These overgrown forests throttle the growth of grasses and forbs vital for elk and other wildlife, and are susceptible to disease, beetle kill and an elevated risk of catastrophic wildfire that can decimate an ecosystem.

What True Conservation Looks Like

The Rocky Mountain Elk Foundation’s mission is to ensure the future of elk, other wildlife, their habitat and our hunting heritage. RMEF does so by working collaboratively with federal and state agencies as well as other partners to provide both funding and volunteer manpower to carry out prescribed burning, forest thinning, noxious weed treatments, repairing or constructing wildlife water developments, fertilizations, planting seedlings and other actions to maintain or improve habitat for elk and other wildlife.

RMEF also provides grant funding for wildlife management, scientific research and predator management. Additionally, RMEF seeks to permanently protect and open access to elk winter and summer range, migration corridors and calving grounds via land acquisitions, access agreements and easements, conservation easements, land donations and other means. RMEF also works to reestablish elk in historic ranges where habitat and cultural tolerance create a high potential for self-sustaining wild, free-ranging herds.

Just one small but impactful example of planned management or conservation: RMEF recently provided additional funding for an ongoing series of projects to create and enhance forage openings and water sources for elk and other wildlife in Virginia’s Elk Restoration Zone. This important habitat enhancement work benefits Virginia’s growing elk herd, which was restored to its historic range by the Virginia Department of Wildlife Resources (DWR) and RMEF in 2012. Because of projects designed to improve elk habitat like this one, DWR recently introduced a special elk hunting license that may lead to Virginia’s first managed elk hunt in more than a century, one that will generate vital funding to benefit elk herds and habitat for a rich variety of other wildlife.

Any objective look at the Rocky Mountain Elk Foundation’s lifetime conservation accomplishments shows the immense impact the organization has had on elk, other wildlife and habitat. As of January 1, 2021, RMEF conserved or enhanced more than 6.8 million acres of wildlife habitat and permanently protected 1.3 million acres of land. That amounts to more than 8.1 million acres of combined conservation work. On top of that, RMEF played a pivotal role in restoring wild, free-ranging elk to Kentucky, Missouri, North Carolina, Tennessee, Virginia, West Virginia, Wisconsin and Ontario. and RMEF has invested millions of dollars to help fund wildlife research key to delivering the most effective management. All that adds up to a lot of work and a lot of conservation.