Congress Considers Testimony on Lawsuit Reform

In testimony before a Congressional committee, Boone and Crockett Club president emeritus Lowell E. Baier told committee members that H.R. 1996, the Government Savings Litigation Act, will help America's fish, wildlife and natural resources agencies do their jobs.

The legislation will benefit conservation and sound wildlife management by bringing fairness, transparency and accountability to the Equal Access to Justice Act (EAJA).

EAJA is an historic law that allows plaintiffs to recover attorney fees and other expenses from the federal government when they prevai--average citizens who need help finding and paying for a lawyer to correct errors in earned benefits or to remedy mistaken penalties imposed by federal agencies.

In recent years, animal rights and environmental advocacy groups that use lawsuits to protest lawful decisions that they happen to oppose have also used EAJA to collect fees. The most frequent abuses include suing the U.S. Fish and Wildlife Service and other agencies on minor procedural decisions, then collecting settlements and EAJA reimbursements.

These private groups are collecting taxpayer dollars and consuming agency resources that could go toward wildlife management and conservation programs.

And it's a trend resulting in judges, rather than conservation professionals, shaping the future of wildlife in America.

The U.S. House Committee on the Judiciary's Subcommittee on Courts, Commercial and Administrative Law held an Oct. 11 hearing on H.R. 1996. Conservation, agriculture and livestock interests attended to urge passage.

Baier said, "We are resolute that we will not tread on EAJA's historic purpose. But we need to put 'equal' back into the Equal Access to Justice Act by requiring everyone to meet the same eligibility standards."

Currently, individuals are eligible to use EAJA if their net worth does not exceed $2 million. Businesses are eligible provided their net worth does not exceed $7 million.

"H.R. 1996 would extend these same eligibility requirements to nonprofit organizations. As EAJA stands today, special interest groups are eligible to recoup legal fees regardless of their net worth. That’s an inequity that needs repair," said Baier. "To be clear, this measure will not prevent litigation. It relieves taxpayers of paying the legal bills of big-business animal rights and environmental advocacy groups."

H.R. 1996 would make EAJA consistent with the 205 other federal fee shifting statutes, all of which limit 501(c)(3) not-for-profit organizations to the same eligibility requirements that apply to private citizens and small businesses.

Baier said, "The Congressional Research Service in 2009 determined that EAJA was an anomaly in this regard. That’s a glaring privilege for nonprofit groups that is the antithesis of equality and fairness."

Federal oversight and accounting of EAJA payouts are virtually absent. Total costs are unknown. One attorney tracking the issue estimates 12 animal rights and environmental advocacy groups alone filed over 3,300 lawsuits and recovered more than $37 million in EAJA funds over the past decade. Boone and Crockett research shows EAJA actual costs exceeding $50 million per year from litigation by the top 20 environmental litigants.

H.R. 1996 requires reporting exact costs.

He explained that when EAJA was enacted in 1980, it required an annual report of the number of cases processed and total attorney fees reimbursed. That reporting ended in 1995. H.R. 1996 reinstates EAJA reporting requirements, beginning with an audit of prior unreported years.

Baier added that EAJA also has hidden costs such as conservation agency personnel time spent reviewing procedures, defending complaints and often re-doing entire processes.

H.R. 1996 was introduced by Rep. Cynthia Lummis of Wyoming. Sen. John Barrasso of Wyoming introduced a companion version in the U.S. Senate. The bills together share the title Government Litigation Savings Act.

Boone and Crockett Club is joined in its support for the Government Litigation Savings Act by 37 member organizations of the American Wildlife Conservation Partners, the largest network of fish and wildlife conservation groups in the country. Together the groups represent some 8 million sportsmen and conservationists.

The coalition signed on following a 2010 Boone and Crockett Club investigation of federal statutes that enable ongoing litigation at a high cost to wildlife conservation and management. Baier, a Maryland-based attorney, led the effort. His preliminary findings are reported in two articles available free at www.boone-crockett.org. Baier also employed two full-time attorneys to research EAJA’s initial Congressional intent, its judicial interpretation and application, abuses, loopholes and possible remedies.