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EAJA loophole attacked

Published on November 4, 2011 3:01AM

Last changed on December 2, 2011 8:29AM


Capital Press

Livestock producers are calling on Congress to close a loophole in the Equal Access to Justice Act they say bankrolls radical environmental groups that sue them.

The 1980 Act allows plaintiffs to recover attorney fees and other costs from the federal government when they prevail in a case against the government

"It was intended to allow for individuals and small entities to stand up to the endless pockets of federal government," said Dustin Van Liew, executive director of the Public Lands Council.

Only individuals or businesses with a net worth of $7 million or less are eligible to participate. But any nonprofit group, regardless of its net worth, is also eligible for reimbursement.

That's led to a flurry of lawsuits by environmental groups, some with sizable net worth, seeking exorbitant attorney fees, paid for with tax dollars, he said.

"We see the real problem as wealthy special interest groups exploiting a loophole to further their agenda of removing livestock grazing from public lands," he said.

The Public Lands Council, National Cattlemen's Beef Association, American Sheep Industry Association, the Association of National Grasslands and 35 affiliate groups are calling on Congress to support HR1966 to remedy the issue.

The legislation, the Government Savings Litigation Act, introduced by Rep. Cynthia Lummis, R-Wyo., in May, was the subject of a hearing by a House Judiciary Subcommittee on Oct. 11.

The legislation would:

* Prohibit non-profit organizations with a net worth exceeding $7 million from filing for EAJA funds.

* Require EAJA filers show a "direct and monetary interest."

* Cap attorney fees.

* Limit the number of annual reimbursements and amount a filer can receive.

* Require oversight and reporting of payments (which ended in 1995) as well as a Government Accountability Office audit of payments over the past 12 years.

"Many of the people abusing EAJA don't have a direct and monetary interest," Van Liew said.

They are wealthy special interests groups that are not impacted by what they're suing over, primarily minor process decisions or missed deadlines, and shouldn't have access to EAJA funding, he said.

Wyoming attorney Karen Budd-Falen estimates that over the past decade, 12 environmental groups alone have filed more than 3,300 lawsuits, recovering more than $37 million in EAJA funds.

"Environmental extremist groups have made a hobby of suing the government on minor process-related decisions," he said.

And the government often settles cases and pays the plaintiffs through EAJA instead of devoting time, staff and resources to a trial, Van Liew said.

In written testimony presented at the hearing, Jennifer Ellis, a Blackfoot, Idaho, rancher, chair of Western Legacy Alliance and past president of the Idaho Cattle Association, said "the collection of EAJA fees appears to be the primary purpose" of the environmental groups suing federal agencies.

The special interest groups, which refuse to participate in collaborative conservation agreements, are using "unending obstructionist litigation" to force their agendas, and under the auspices of EAJA, are "funding their next round of litigation."


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