Parallel Universe, Part Two: When Two
Worlds Collide – Justice and ‘equal access to
justice’
By Julie Kay Smithson, property rights
researcher, London, Ohio propertyrights@earthlink.net http://www.propertyrightsresearch.org and http://propertyrightsresearch.blogspot.com
Today’s atmosphere of seemingly endless
litigation, whose outcomes often shut down resource utilization, requires some
study to understand. Are the litigants actually “against” the use of resources
on, or access to, federal land, or have they other reasons for filing lawsuits?
The answer may surprise some readers. It is important to understand why certain
actions are being taken that require property owners and resource users to
defend their established, proven practices and methods.
Enabling
legislation is defined as legislation that authorizes the State to assess, levy,
charge, or otherwise mandate payment from external parties and includes a
legally enforceable requirement that those resources be used only for the
specific purposes stipulated in the legislation. http://www.oregon.gov/DAS/SCD/SARS/policies/oam/15.85.00.PR.pdf
The methods by which the federal system and
other states initially select and then elect or retain judges are varied, yet
the explicit or implicit goal of the constitutional provisions and enabling
legislation is the same: to create and maintain an independent judiciary as free
from political, economic and social pressure as possible so judges can decide
cases without those influences. – United States Court of Appeals for the Eighth
Circuit, No. 99-4021 http://www.ca8.uscourts.gov/opndir/01/04/994021P.pdf (Page 21 of 89 pages)
Enabling legislation
also creates an legal environment in which litigation may be filed in order to
correct a wrong or wronged party, clarify a statute that was not easily
understood or interpreted, set precedent, etc.
The Equal Access to
Justice Act (EAJA) Summary (5 U.S.C. § 504; 28 U.S.C. § 2412) provides for the
award of attorney fees (up to $125 per hour) and other expenses to eligible
individuals and small entities that are parties to litigation against the
government. An eligible party may receive an award when it prevails over the
government, unless the government’s position was "substantially justified" or
special circumstances make an award unjust. To recover “fees and other expenses”
under the EAJA, a claimant must show that it is a "prevailing party." Parties
are considered to be prevailing parties when they have been successful on any
significant issue in litigation that achieves some of the benefit the parties
sought. A party must also show that the lawsuit was a material factor in
bringing about the desired result and the outcome was required by law and was
not a gratuitous act by the government. Finally, whether a party is a small
entity for purposes of EAJA is determined by a unique size standard included in
the act. Compliance with the size standard is a threshold requirement for an
award of fees under the act. – Small Business Administration Office of Advocacy
http://www.sba.gov/advo/laws/sum_eaja.html
In 1980, Congress enacted the Paperwork Reduction
Act (PRA) in response to the federal government's growing demand for data from
small businesses, individuals, and state and local governments, and attempted to
institute controls over government requests for data. – 44 U.S.C. § 3501.
http://library.findlaw.com/2003/Jan/14/132464.html
The Information Quality Act (IQA), called the
Data Quality Act (DQA) by the Government Accountability Office (GAO), is an
attempt by Congress to ensure that federal agencies use and disseminate accurate
information. The DQA requires federal agencies to issue information quality
guidelines ensuring the quality, utility, objectivity and integrity of
information that they disseminate and provide mechanisms for affected persons to
correct such information. … Questions that remain unanswered about the Data
Quality Act are whether agency information quality guidelines apply to
rulemaking and whether an agency's denial of a petition to correct information
is reviewable by the courts. … Purpose of the Data Quality Act: Congress enacted
the DQA primarily in response to increased use of the Internet, which gives
agencies the ability to communicate information easily and quickly to a large
audience. Under the DQA, federal agencies must ensure that the information it
disseminates meets certain quality standards. Congress' intent was to prevent
the harm that can occur when government websites, which are easily and often
accessed by the public, disseminate inaccurate information. … Quality of
Information: First, the agencies were to adopt a basic standard of quality of
information as a performance goal, as well as specific standards of quality
appropriate for the various categories of information they disseminate. 67 F.R.
at 8459. Each agency was required to publish its own guidelines in the Federal
Register as well as on the agency's website. Id. In addition, each agency
promulgated guidelines that can be found on OMB's website. See http://www.whitehouse.gov/omb/inforeg/agency_info_quality_links.html and http://www.whitehouse.gov/omb/assets/omb/inforeg/2007_cb/2007_draft_cb_report.pdf (103 pages; 735.20 KB) http://library.findlaw.com/2003/Jan/14/132464.html
31 U.S.C.§ 1304 – US CODE, Title 31, 1304:
Judgments, awards, and compromise settlements. (a) Necessary amounts are
appropriated to pay final judgments, awards, compromise settlements, and
interest and costs specified in the judgments or otherwise authorized by law
when— (1) payment is not otherwise provided for; (2) payment is certified by the
Secretary of the Treasury; and (3) the judgment, award, or settlement is
payable— (A) under section 2414, 2517, 2672, or 2677 of title 28; (B) under
section 3723 of this title; (C) under a decision of a board of contract appeals;
or (D) in excess of an amount payable from the appropriations of an agency for a
meritorious claim under section 2733 or 2734 of title 10, section 715 of title
32, or section 203 of the National Aeronautics and Space Act of 1958 (42 U.S.C.
2473). (b) (1) Interest may be paid from the appropriation made by this section—
(A) on a judgment of a district court, only when the judgment becomes final
after review on appeal or petition by the United States Government, and then
only from the date of filing of the transcript of the judgment with the
Secretary of the Treasury through the day before the date of the mandate of
affirmance; or (B) on a judgment of the Court of Appeals for the Federal Circuit
or the United States Court of Federal Claims under section 2516 (b) of title 28,
only from the date of filing of the transcript of the judgment with the
Secretary of the Treasury through the day before the date of the mandate of
affirmance. http://www.law.cornell.edu/uscode/31/usc_sec_31_00001304----000-.html
The Financial Management Service (FMS) is a
bureau of the U.S. Department of the Treasury. Treasury’s role is to “oversee”
the use of this appropriation. http://www.fms.treas.gov/judgefund/background.html "The Judgment Fund is available for court judgments
and Justice Department compromise settlements of actual or imminent lawsuits
against the government." – Overview: Judgment Fund: Programs and Systems:
Financial Management Service http://www.fms.treas.gov/judgefund/index.html judgment.fund@fms.treas.gov or 866-277-1046
Because Congress has not
articulated a specific standard of adequacy to support a fee application, but
has noted that reimbursement of fees and expenses is made in lieu of the Equal
Access to Justice Act (EAJA), the Financial Management Service (FMS) will use
EAJA as a guideline for determining the adequacy of applications for
reimbursement under this legislation. Generally, applicants should submit an
affidavit establishing (1) the attorney's hourly fee rate and how it was
determined; and (2) include an itemized statement containing the amount of time
spent working on specific tasks and (3) and itemized list of other expenses or
costs.
The basic policy of FOIA is one of disclosure. Accordingly, FMS
will assume that any information submitted as part of an application for fees
and expenses is subject to disclosure. However, FMS will consider an applicant's
request that certain material not be disclosed.
http://fms.treas.gov/judgefund/questions_108-007.html
The Western Watersheds Project, a self-described
“non-profit conservation group,” is but one example of those organizations
engaged in what, at first blush, appear to be valid “environmental” concerns.
The WWP and a bevy of like-mined partners -- “ … the Oregon Natural Desert
Association in Oregon, Forest Guardians in New Mexico, the Center for Biological
Diversity in Arizona, the American Lands Alliance in Washington, D.C.; and the
Larch Company in Ashland, Oregon” -- operates what seems to be a selfless
campaign for good. “With these groups WWP co-founded the National Public Lands
Grazing Campaign that supports federal legislation for a generous and voluntary
federal grazing permit buyout program to compensate ranchers and restore public
lands. Congressman Raul Grijalva of Arizona sponsors that legislation. WWP’s
long-term partner in our efforts to bring the Bureau of Land Management and the
Forest Service into compliance with national environmental laws is the
non-profit environmental law firm Advocates For The West in Boise,
Idaho.”
The WWP makes statements like: "Through vigorous litigation under
the Endangered Species Act, Clean Water Act and Federal Land Policy Management
Act, WWP has successfully challenged public-lands grazing practices that
threaten watersheds and endangered species such as salmon, steelhead and bull
trout." http://www.westernwatersheds.org/about
In the past decade alone, WWP has received,
through Equal Access to Justice Act provisions, just short of one million
dollars. Source: Budd-Falen Law Offices, LLC, Cheyenne, Wyoming.
The
commissioners of Owyhee County, Idaho, bravely stood up and questioned U.S. Fish
and Wildlife Service in 2004. After more than a year, their reply seemed to put
to rest any need to list the sage grouse or protect its habitat from
grazing:
"Mr. Hal Tolmie, Chairman of the Board, Owyhee County Board of
Commissioners, P.O. Box 128, Murphy, Idaho 83650-0128. Dear Chairman Tolmie: On
June 21, 2004, the Owyhee County Board of Commissioners filed a request for
correction of information (RFC) [emphasis added] under Section 5 15 of Public
Law 106-554, commonly referred to as the Information Quality Act (IQA), with our
Wyoming Ecological Services Field Office in regards to a U.S. Fish and Wildlife
Service (Service) 90-day Finding for Petitions to list the greater sage grouse
as threatened or endangered under the Endangered Species Act (ESA), published
April 21, 2003 (69 FR, No. 77). In that notice, we announced that there was
substantial information available to initiate a status review of the species and
asked the public to submit any pertinent information concerning the status of or
threats to this species. On December 2, 2004, you were notified that the Service
needed additional time to respond to your request. Subsequently, the service
published a final rule in the Federal Register (70 FR 2279), that the petitioned
action to list the greater sage-grouse was not warranted, that the species is
not in danger of extinction, nor is it likely to become endangered in the
foreseeable future. [Emphasis added] The data quality issues you raised in your
IQA resulted in additional review and we believe our response addressed them
affirmatively. We believe the issues you raised were addressed in the final
rule, and unless you feel that they were not adequately addressed, we will not
be providing a separate response.” Sincerely, Thomas O. Melius, Assistant
Director, External Affairs" – July 18, 2005, [U.S. Fish & Wildlife] Service
response on letterhead with Washington, D.C., address. http://www.fws.gov/informationquality/topics/FY2004/Owyhee%20Sage%20Grouse/Response%2018%20July%202005.pdf (1 page; 86.66 KB)
Oftentimes, litigious
parties seem more interested in what amounts to the “litigate free” sections of
the Equal Access to Justice Act than the actual stated purpose of the lawsuits.
If it were as costly for the plaintiffs as it was for the defendants in these
cases, most such arbitrary and capricious litigation would come to an abrupt
halt. Change in or repeal of this act would bring much-needed relief to American
taxpayers without harm to any species.
After reading Part One of this
article series, Ohioan G.L. Kronk observed of ranchers: “They have the common
sense to rotate their crop, because cattle are a crop.” This is a powerful
comment, coming from someone who neither farms nor ranches. The public, every
member of which is a consumer, needs to see itself as the direct and active
beneficiary of the responsible utilization of natural resources. An educated
consumer does not advocate locking up natural resources, but supports production
of resources for the mutual benefit of people, animals that are grown for human
consumption and those that benefit from the presence of people. “The
environment,” deprived of human touch, stewardship and ingenuity, loses its
vibrancy, its ability to benefit others and its “reason for
being.”
Part Three unites
positive change, public action and ranchers.
~~~~~
Article citation: "First published in the
October/November 2009 issue of Progressive Rancher Magazine."
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