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Equal Access to Justice Act Abuse – AFRC Excerpt PDF Print E-mail


November 2009
American Forest Resource Council

Note: the following report was extracted from the November-2009 issue of the American Forest Resource Council News [here]. The author, Ann Forest Burns is Vice President, American Forest Resource Council, Portland, OR. Before turning to association work, Ann practiced timber and forestry law in Seattle for many years.  She was associate professor of forest policy and law, University of Washington College of Forest Resources. An SAF Certified Forester, she holds degrees in forest management from the University of Washington and in law from Willamette University.

In a brief filed on October 30, attorneys representing defendant-intervener Silver Creek Timber Company asked the Ninth Circuit Court of Appeals not to pay the exorbitant attorneys fees demanded by Earth Justice 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 [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 attorney’s 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.

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