LITIGATION: Forest Service paid $6.1M in groups' legal fees over six years -- study

Lawrence Hurley, E&E reporter

The Forest Service paid $6.1 million in legal fees to groups that sued it over a six-year period, according to an academic study that casts new light on a politically charged issue.

At issue is the Equal Access to Justice Act (EAJA), which requires the federal government to pay attorneys fees when it loses cases under statutes that do not specifically call for such fees to be paid by the government.

Some Republican lawmakers argue that environmental groups have taken advantage of a lack of oversight on such payments and file numerous lawsuits they know they can win on procedural grounds.

Recently introduced legislation, the "Government Litigation Savings Act," would amend the statute. The measure's lead sponsors are two Wyoming Republicans, Sen. John Barrasso and Rep. Cynthia Lummis (E&ENews PM, May 25).

The new report -- published in the latest issue of the Society of American Foresters' Journal of Forestry -- includes data from the Forest Service and Justice Department obtained through Freedom of Information Act requests.

The payments cover the period 1999 to 2005.

The researchers were Michael Mortimer, an assistant professor at the College of Natural Resources and Environment at Virginia Tech University, and Robert Malmsheimer, a professor at the State University of New York College of Environmental Science and Forestry.

They found that of the $6.1 million that the Forest Service reported paying, $3.2 million went to environmental groups. DOJ reported a different total, $3.5 million.

Frequent litigators included the Sierra Club Legal Defense Fund, the Center for Biological Diversity and Earthjustice.

In reaching conclusions about the findings, Mortimer and Malsheimer conceded the difficulty of making sweeping generalizations, especially due to the discrepancies in the data.

While the law could be seen as encouraging litigation, they wrote, some groups are likely to litigate, regardless of whether they can win legal fees.

"Even if EAJA were completely repealed, these organizations would likely continue to sue land management agencies," the researchers wrote.

Some of the bigger environmental groups, they wrote, "are quite well financed and therefore not the class of plaintiffs for which the law was designed to provide access to the expensive federal litigation system."

Although there are repeat players, they wrote, "the vast majority of parties" are only involved in one lawsuit.

Responding to the study, John Buse, legal director for the Center for Biological Diversity, said he disagreed with the researchers' suggestion that EAJA is a "positive incentive" for litigation because it reduces the risk for groups filing suit.

Although "it may be true" that the law reduces risk, it does not follow that it encourages people to sue, he added.

The study also downplays the law's role in "incentivizing agencies' compliance with the law," Buse said.

The Republican-backed bill (H.R. 1996) to reform the law would restrict reimbursements for each entity to no more than three in a calendar year and would prevent payments to any group that has a net worth of more than $7 million.

The maximum payment for each case would be $200,000.

Separately, there is language in the House appropriations bill for the Interior and U.S. EPA that would require tracking and reporting of EAJA payments.

Click here to read the paper.

Reporter Phil Taylor contributed.