Litigation a fundraiser for environmentalistsWritten by Jennifer Womack
Of 37 active cases she now has, Budd-Falen says 18 stem from environmental groups. Western Watersheds Project (WWP), featured in the Feb. 23 Roundup, has the strongest presence. A handful of the cases involve the Endangered Species Act, one the Clean Water Act and the remainder relate to grazing permit renewals.
“I just got another suit where WWP was trying to stop a permit transfer in the Rock Springs office by filing an appeal,” says Budd-Falen. “The frustrating thing about this appeal is even though the appeal named the right allotment, when you read the body of the appeal, it talked about a different allotment 50 miles away. The WWP had no data regarding the permit transfer under appeal and didn’t even state that any WWP member had ever actually set foot on the particular allotment. As long as the administrative appeals system is set up to allow anyone to claim an interest in a grazing allotment, even if the environmental group has never stepped foot on the allotment, you are going to have this kind of abuse of the administrative court process.”
“They just have everything written up and push a button and spit out the same thing all over again,” says Sheridan attorney John Ward. He says judges need to be more willing to throw out cases that repeat the same arguments over and over again.
Environmental plaintiffs, says Budd-Falen, recoup their expenses through two different routes. If they win an ESA case they automatically get their fees paid.
In Administrative Procedures Act cases environmentalists can apply to have their fees reimbursed. Cases involving the National Environmental Policy Act (NEPA), often used as a tool by environmental groups, fall into this category. “Only twice in 20 years have I got attorneys fees from this,” says Budd-Falen of the argument by some that a broader group can use the tool. “When we’re an intervener, we don’t have a chance to get them,” she says. That’s often the case in scenarios where grazing permit holders are defending their permit in a case between the environmental community and federal land agencies.
“I’ve seen them bill out attorneys fees at $500 an hour,” says Budd-Falen.
During his litigation against the Center for Biological Diversity, Arizona rancher Jim Chilton reviewed the group’s income statement. “At that point in time, 2002 or 2003, almost a million dollars was coming from money granted to them by judges under the ESA or the Equal Access to Justice Act,” says Chilton. Of their budget he says, “A million came from contributions, a million through grants from charitable organizations and a million from lawsuit money. I’ve heard since then they’ve doubled their income to over six million a year.”
Chilton adds, “I have a net worth exceeding the maximum allowable to qualify for the Equal Access to Justice Act so I could not get attorney fees using the law. I paid all of my legal expenses out of my retirement account.”
Budd-Falen says the Department of Justice has become quick to settle and accept the environmentalists’ financial requests.
What’s more is that law schools like the ones at Denver University and Lewis and Clark Law College in Portland, Oreg., are allowing professors to have their students write briefs as assignments. “You have a professor on staff receiving grants and having his students write free briefs,” she says. “We don’t have anything like that on our side.” When such options have been explored for the agricultural side she says they’ve been told similar services can’t be provided to a for-profit business.
Calls placed to two federal agencies from the Roundup yielded very little information on how much money is dispersed annually through the Equal Access to Justice Act. Information received through the Small Business Administration website showed the lack of cumulative records and information on the Act.
“I really, really think if Congress would make it harder to get attorney fees we wouldn’t see such a huge number of lawsuits,” says Budd-Falen. “The environmental community is making money off this.”