Wednesday, October 14, 2009

Parallel Universe, Part Two: When Two Worlds Collide – Justice and ‘equal access to justice’

Parallel Universe, Part Two: When Two Worlds Collide – Justice and ‘equal access to justice’

By Julie Kay Smithson, property rights researcher, London, Ohio and

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.

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 (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

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.

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 and (103 pages; 735.20 KB)

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.

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. "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 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.

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."

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. (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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