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Taxpayers foot the bill of resource lawsuits

Rangeland Focus

This series on public grazing will be published as follows:

Tuesday: Ranchers give an overview of problems that threaten their way of life.

Wednesday: How rules play out on the ground is explored by agency officials, ranchers.

Thursday: Conservationist perspective about protection of resources on public lands.

Friday: A federal official, ranchers outline what needs to happen next to save small beef producers.

There is a hidden agenda behind most of the court battles involving resource protection that people without ties to agriculture might be unaware of, according to Bob Skinner, chair of the Public Lands Committee for the Oregon Cattlemen’s Association.

“This has become a big business and, because of that, these groups have no real interest in working collaboratively on issues,” he said.

He said environmental lawyers are using the Equal Opportunity for Justice Act to leverage huge returns in settlements and fees. Their methodology is to accuse federal agencies of violating ecosystem protection rules of the Endangered Species Act, the Clean War Act and the Clean Air Act.

For six years in the 2000s, environmental groups filed more than 15,000 suits against the federal government and received settlements of more than $4.7 billion from taxpayers, according to attorney Karen Budd-Falen.

She is a fifth generation rancher who practices out of Wyoming and is on the front lines of federal legal battles on behalf of ranchers, farmers and private property owners.

After hearing about these payouts, Dufur rancher Mike Filbin said: “So, basically, we are paying them to put us out of business.”

He operates one of the largest cattle operations in Wasco County and said it doesn’t seem likely that “common sense” will prevail in decisions regarding livestock grazing on public lands without an overhaul of the current regulatory system.

Budd-Falen has been on a quest to get a full accounting of payouts to environmentalists since 2009 but has run into a massive roadblock — there is no central data base in Washington, D.C., to track these expenditures.

She said the rules of the Paperwork Reduction Act were tightened in 1995 to the point that it is almost impossible to get a true accounting of where the money goes.

“I was floored to learn that the federal government couldn’t tell me (after multiple Freedom of Information Act requests) how many times they had been sued and how much money they had paid,” said Budd-Falen.

“Nonprofit tax-exempt groups are making billions of dollars from these suits and there is just something wrong with this picture. There is no oversight of these expenditures and the irony is that the money is coming out of agency budgets that could be used for programs that actually protect public lands.”

Last year, Budd-Falen was set to testify before the House Natural Resources Committee on the issue and managed, with pressure from that body, to get a spread sheet with limited information from the U.S. Department of Justice.

That report from January 2009 through April 2012 showed that 489 cases had been filed in federal court by environmental groups at a cost to taxpayers of $52,518,628.

She used that information at the committee hearing to underscore her point that federal policies regarding species protection need to be reformed to stop the flow of payments.

She has also documented numerous cases where the federal government paid attorney fees, but hid the exact amount from public view.

Unlike lawyers who seek redress of grievances on behalf of veterans, senior citizens and the disabled, the fees that an environmental attorney can recoup are not capped, according to Budd-Falen.

“Attorneys suing most agencies can recover $200 per hour in fees if they prevail but environmental lawyers are often awarded $750 per hour or more,” she said.

She said the rationale used by environmental groups to justify higher pay is that they represent the natural world – serving as the voice of plant and animal species – for the greater public good.

“There are lawyers across the nation that make their total living from suing the government,” said Budd-Falen.

Skinner said Equal Justice was intended to provide ordinary citizens with a way to address a grievance against a federal agency with millions in taxpayer dollars to defend their actions.

Under the legislation, people could recoup attorney fees if they prevailed in court with a “substantially justified” claim against the government.

Skinner and Budd-Falen contend that agencies have begun capitulating to environmental demands just to avoid the expenditure of manpower and capital to mount a defense.

“These agencies have become so shell-shocked that they usually settle now before going to trial,” said Skinner.

He said the settlement is then claimed as a win by environmentalists, who seek reimbursement of attorney fees, which is granted by judges more often than not.

Dustin Van Liew, executive director of the Public Lands Council, which is affiliated with the National Cattlemen’s Beef Association, believes the U.S. Forest Service and Bureau of Land Management, the two agencies that oversee public grazing, are also trying to pre-empt lawsuits by using administrative powers to appease environmentalists.

For example, he said the bureau has cut 30-50 percent of livestock grazing in Owhyee County, Idaho, by placing restrictions on permits. He said the agency is making those decisions without a scientific review of any issues that environmentalists raise or attempt to work out a mitigation plan with ranchers, if that is necessary.

“We believe they are not making decisions based on what’s happening on the ground,” he said.

Budd-Falen said the number of cases being settled and not argued in court has doubled under the Obama Administration.

She said the problem is likely to worsen with the U.S. Fish and Wildlife Service’s settlement in 2011 with the Center for Biological Diversity. The agency has agreed to consider 757 new plant and animal species for endangered listing.

Skinner and Budd-Falen contend the end result of hundreds of new listings could be potentially devastating to private property owners and the nation’s economic interests.

They said Americans need to demand that resource protection laws stop being used as a tool to shut down land uses that environmentalists oppose, such as grazing and both oil and natural gas exploration and production.

“It’s going to be one thing after another until these laws are rewritten because they are being used as a stranglehold,” said Skinner.

Budd-Falen believes that reforms would be demanded by taxpayers if the problem was made public. She said the main funding sources for settlements and attorney fees is the “Judgment Fund” that is a Congressional line-item appropriation with no mechanism in place to trigger a review of payouts.

“I have had so much trouble getting information that I no longer trust government officials to tell the truth,” she said.

Van Liew said it is becoming more and more imperative to educate the general public about what is happening because as the supply of beef shrinks, or production costs increase, they will be paying higher prices at the grocery store.

“We are trying to hold the line for the industry at this point while we engage the public so that they will understand the need for change,” he said. “Somebody is definitely profiting from all this, but it isn’t the taxpayers.

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