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I thought that, as a friend of Mountain States Legal
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“Summary Judgment.”
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William Perry Pendley, Esq.
President and Chief Operating Officer
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EQUAL ACCESS TO JUSTICE ACT—NEITHER
EQUAL NOR JUST
Last
month, Karen Budd-Falen, a Cheyenne, Wyoming attorney,
presented her findings on the Equal Access to Justice
Act (EAJA) to the 100th Anniversary Conference of the
Rocky Mountain Coal Mining Institute in Vail, Colorado.
After spending years researching court documents—the
federal government keeps no records of EAJA
disbursements—Ms. Budd-Falen found that environmental
groups have amassed tens of millions of dollars in EAJA
awards.
The EAJA was written for nobler purposes, however, which
was to allow Americans forced to litigate against the
federal government to be paid their attorneys’ fees and
expenses if they prevail and if the government’s legal
position is not “substantially justified.” There is a
cap on the hourly fees for which recovery is permitted,
which according to Ms. Budd-Falen, has not limited fees
paid to environmental groups, and an eligibility
restriction based on net worth ($2 million for
individuals and $7 million for entities), which
specifically excepts tax-exempt (environmental) groups.
The use of the EAJA by environmental groups is unique in
two other ways, one not intended by Congress, the other
not anticipated. Environmental groups recover fees for
suing over non-injurious, technical violations of
federal law, whereas most other EAJA applicants sue to
vindicate constitutional or statutory rights. Finally,
while environmental groups are paid quickly, private
litigants are paid only after years, if ever.
Take John Shuler of Dupuyer, Montana, who killed a
grizzly bear in self-defense—as allowed under the
Endangered Species Act—but was prosecuted by the federal
government for nearly a decade. Shuler prevailed only
after his attorneys expended $225,000; however, federal
courts denied his EAJA application, holding that the
federal government’s position in his case was
“substantially justified.” The courts did so despite the
risible factual and legal arguments of federal lawyers:
1) Shuler did not act in self-defense despite that the
bear charged and fell mortally wounded 20 feet from him;
2) Shuler, by leaving his house, unlawfully placed
himself in the “zone of imminent danger,” 3) Shuler’s
dog “Boone,” by going on point, provoked the bear and,
thus, “escalated” the conflict; and 4) bears are
entitled to a higher standard of self-defense because
they are not capable of sapient thought.
Or take Donald Eno, a disabled veteran on fixed
income, seeking to eek out a living as a miner on his
gold and travertine claim in the Plumas National Forest
in northern California. In 1996, the U.S. Forest Service
took legal action to drive Mr. Eno off his extremely
valuable claim. The government asserted, for example,
that any mining would interfere with cultural myths
allegedly important to some Maidu Indians; in fact, one
Forest Service attorney met, unsuccessfully, with the
Maidu urging them to so assert. In December 2003, after
years of pre-hearing preparation, testimony, and
post-hearing briefs, an administrative law judge ruled
in favor of Mr. Eno. The federal government appealed,
but in February 2007, Mr. Eno once again prevailed.
Although federal lawyers did not appeal, they challenged
Mr. Eno’s EAJA claim for nearly $200,000, a battle that,
after more than five years, remains in federal court!
Or take Stanley K. Mann, a professor, lawyer, and
alternative-energy entrepreneur, whose extremely
valuable geothermal wells were seized illegally by
federal officials. Beginning in April 1998, Mr. Mann
fought to recover payment for what had been taken from
him; in April 2009, Mr. Mann was awarded nearly $1
million. Despite his clear victory, the years invested
in it, and the absence of any justification for the
government’s illegal actions, federal lawyers contested
his nearly $300,000 EAJA claim. Nearly three years
later, Mr. Mann awaits a ruling.
Representative Cynthia Lummis (R-WY) has introduced
legislation to restore the EAJA to its original intent,
but passage of her bill is unlikely in the days that
remain in the 112th Congress. Meanwhile, environmental
groups are on the way to the bank with their huge awards
while private citizens sit empty handed at the
courthouse door.
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