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Equal Access to Justice Act not equal Feds dole out $41 million for groups to sue them

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Budd-Falen
Budd-Falen

SPOKANE, Wash. — The Equal Access to Justice Act has allowed environmental organizations to spend at least $41 million in federal taxpayer dollars over a nine-year period suing federal agencies, such as over grazing issues or mining projects, according to attorney Karen Budd-Falen of Cheyenne.

“The general public doesn’t even know that’s where taxpayer dollars are going,” she said.

Budd-Falen told a technical session audience Thursday at the Northwest Mining Association convention in Spokane that her research also found many cases don’t show a monetary amount, so the actual total is higher.

The act provides funding for lawsuits for such organizations but doesn’t allow ranchers or mining companies, or their related associations to use federal dollars for lawsuits.

“Western Watersheds’ No. 1 goal is eliminating livestock grazing. We looked at Western Watersheds. We wanted to know how many suits they filed to eliminate grazing permits. It was 91 cases,” Budd-Falen said.

That was according to the U.S. Justice Department, but she later learned the department missed 21 cases.

“They can’t even give you a list of who is suing them,” she said.

The actions of Western Watersheds Project have been a hot topic in Nevada, especially in light of El Paso Corp.’s settlement with the organization over the Ruby Pipeline. That deal resulted in a $15 million conservation trust for Western Watersheds in exchange for the organization dropping its protests against the natural gas pipeline. Ranchers are angry that El Paso would provide a trust for an organization that fights grazing on public lands.

El Paso also set up a $7 million conservation trust for the Oregon Natural Desert Association over Ruby Pipeline, and the company later reached a tentative agreement with the Public Lands Council for a $15 million trust.

The Equal Access to Justice Act came up in talks about Western Watersheds’ lawsuits in Nevada.

Budd-Falen said Thursday the Center for Biological Diversity received $941,332 in legal fees for two cases in Washington under the act.

“I’m convinced these people are as capitalistic as I am. The federal program was not meant to do that,” she said.

Congress wanted to help people have access to money for legal fees to fight small problems where government agencies acted out of hand, “but it was turned into a huge loophole by environmentalists,” Budd-Falen said.

She also said environmental organizations are sometimes “just getting paid to go away,” when the government settles a complaint without going to court, and these settlements are having an impact.

The amount of fees paid to attorneys is another issue under the Equal Access to Justice Act. Budd-Falen said she discovered lawyers received $650 an hour in a filing against the U.S. Forest Service.

“Seven attorneys filed one brief at $650 an hour,” Budd-Falen said.

She also said environmental organizations are suing because they say federal agencies didn’t do enough study under the National Environmental Policy Act. The suits are over process, rather than substance.

Budd-Falen said she isn’t opposed to the original concept of the act, and that intent should be enforced. Also, the government should be held accountable for the money spent.

“I don’t see any accountability at all,” she said.

The session on impediments to mining in this country looked at the Endangered Species Act, as well. Craig Manson, a former assistant secretary in the U.S. Department of Interior, said one misconception is that the listing process should be free of politics.

“A decision to list a species is a public policy decision. It’s not scientific but a science-informed decision. Only the secretary of Interior can make the determination,” he said, explaining that there needs to be accountability, and that’s where politics comes into play. Without politics, “there is a leadership void,” Manson said.

He said he would like to see changes so that a proposed listing of a species isn’t a trigger but rather a means to finding a solution with the help of scientists and in working with states.

“It’s a good thing to have a healthy eco-system but we have to prioritize these things,” Manson said.

Katie Sweeney, general counsel for the National Mining Association, said at the Thursday session that mining is growing globally but the industry is shrinking in the United States, so this country is becoming a marginal player rather than the leader.

“There are big challenges for mining. There is not enough regulatory certainty, regulatory policies aren’t consistent and permitting for projects is “unacceptably long,” Sweeney said, showing a chart with the number of desks in the U.S. Bureau of Land Management in Washington, D.C., that a notice for exploration goes through before it is published in the Federal Register, after leaving a state BLM office.

She said the U.S. is ranked the lowest in permitting times in a Behre Dolbert study, “down there with the Congo and India. It’s pretty crazy.”

Looking at the upcoming session of Congress, Sweeney said she doesn’t expect mining law reform to come up, but there may be a push for federal agencies to “step it up,” in lieu of mining law reform.

The mining industry faces a number of other threats, she said, including regulations over air and water quality, toxic release inventory, financial assurances the U.S. Environmental Protection Agency is proposing and a federal lawsuit over millsites and ancillary use on public lands.

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