In the coming battle over the Equal Access to Justice Act, the one thing everybody agrees on is nobody knows what's going on.
"EAJA was something I was involved in as a young, newly crafted congressional aide back in the late '70s and early '80s," said Rep. Denny Rehberg, one of 38 co-sponsors of the Government Litigation Savings Act that's intended to reform the law. "I came into Congress in 2000, and had no idea the accounting had changed since I was involved in it. I had no idea why. It doesn't make sense."
The Equal Access to Justice Act says any government agency that loses a lawsuit to a private individual, group or business must pay the legal costs of the winner. The money comes out of each agency's budget, rather than a central fund. And in the past couple of years, it's become the target of agriculture, sporting, energy and recreation groups as the "gravy train" that fuels environmental lawsuits.
"When I was a congressional aide for Ron Marlenee, it was one of the single biggest issues brought by the National Federation of Independent Businesses," Rehberg said. "It was always intended to help small businesses having some kind of problem with federal government, so they had equal access to the court system without putting them out of business.
"It's morphed into something entirely different that wasn't intended. It's become a cottage industry for lawsuits, especially in the environmental arena."
The Equal Access Act was signed in 1980 by President Jimmy Carter and permanently funded in 1985 under President Ronald Reagan. In 1995, the requirement for annual accounting of EAJA awards lapsed and was never reinstated.
Since then, no one has been able to track who's got what in legal-fee reimbursements. Reform bill author Rep. Cynthia Lummis, R-Wyo., claimed in February "there are 14 environmental groups that have recovered $37 million by filing 1,200 lawsuits for which they've recovered judgments and even legal fees under settlements with the federal government, thereby fueling the fire of suing
the federal government over sometimes
But a 2010 Earthjustice review found just 1 percent of Equal Access cases made awards for environmental lawsuits, and those were split between conservation and industry groups. Earthjustice is a not-for-profit law firm representing conservation and environmental groups.
"I think there's a larger debate about public citizen involvement and the role of government," Earthjustice attorney Doug Honnold said. "What gets lost in the shuffle is a lot of the attacks mounted against EAJA are ignorant of the fact that environmental cases are a relatively small part of the pie."
Other applicants for Equal Access to Justice money include businesses challenging federal agencies such as the Occupational Safety and Health Administration and military veterans fighting the Veterans Administration or Department of Defense.
Because there's no central accounting of EAJA spending, there's no easy way to find out how much is spent. A spokesman at the U.S. Fish and Wildlife Service couldn't provide figures on how much it had paid in reimbursements, referring a reporter to the Department of Justice, which handles its legal affairs. A DOJ spokesman said he couldn't find Fish and Wildlife Service accounts either.
But a phone call to the U.S. Forest Service Northern Region office in Missoula produced a six-page spreadsheet of EAJA payments made between 2000 and 2010. It showed $1,984,981 in payments over the decade, almost all to environmental organizations. Payments ranged from $1,250 to settle a title dispute to $200,492 to Friends of the Bitterroot in 2002 over the Bitterroot Burned Area Recovery Project.
The Helena-based Alliance for the Wild Rockies filed six of those claims, receiving $130,000 over the decade. Director Michael Garrity said the money did not fund the group's operating expenses.
"We get paid only if we win," Garrity said. "The real question is why does the government keep losing? Instead of getting rid of (EAJA), Congressman Rehberg should provide oversight of federal agencies to find out why they have such a hard time following the law."
The proposed legislation would limit all groups filing EAJA claims to a $7 million total net worth. That would eliminate groups like Center for Biological Diversity and Earthjustice, two of the leading challengers to Endangered Species Act policies.
The Center for Biological Diversity reported $685,981 in legal returns in 2010 and net assets of $9.8 million. In 2009, the group's legal returns were $1.17 million and its net assets were $8.15 million.
Earthjustice, which represented the coalition of environmental groups challenging gray wolf delisting, reported $2.89 million in court awards in 2010 out of $14 million in litigation costs and $33.8 million in total revenue. In 2009, the figures were $2.3 million in court awards on $14.6 million in litigation expenses and $35.59 million total revenue.
But only a portion of the court awards came from EAJA reimbursements, according to Earthjustice attorney Honnold in Bozeman. Several other laws, including the Endangered Species Act, the Clean Water Act and the Clean Air Act, all have their own reimbursement provisions. And those laws allow market rates for attorney hourly rates, while EAJA limits its claims to $125 an hour.
The new legislation would also limit attorneys' fees to $175 an hour, with all extra charges prohibited. EAJA requests for a business case involving the Occupational Safety and Health Administration have run as high as $495 an hour, although the agency only allowed 36 percent of that total bill.
"Some of those bills turned over for payment to the courts have been in the range of $650 an hour for attorney fees," said Kerry White of Citizens for Balanced Use, one of the reform bill's supporters. "I don't mind paying attorneys what they're worth, but that's getting a little out of line."
White added his group would also like to receive reimbursement for the legal fees it incurs. It's currently fighting four court cases, involving Forest Service travel plans and wilderness study areas in the Gallatin National Forest, travel plans on the Badger-Two Medicine area and the forest management plan of the Beaverhead-Deerlodge National Forest.
"When we do file litigation, we'd want compensation," White said. "We've never won any, so I couldn't tell you we'd get paid on it."
The limits on legal fees might have blocked a $52,000 bill for paralegal services that a private security firm won from the Immigration and Naturalization Service as part of a $1.5 million settlement over a contract dispute. The security firm had to go to court to win those charges in addition to its lawyers' bills.
"I think it would be a good thing for the public to know that goes on both sides - industry side and environmental side," White said.