Wyoming Lawyer: Environmental Groups Using Taxpayer Money for Legal Fees
In this special report, WyoFile explores how Wyoming attorney Karen Budd-Falen is stirring things up in Wyoming and in the West by alleging that environmental groups are paying attorney fees with taxpayer money.By Philip White, WyoFile, Guest Writer, 2-19-10
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| Photo by Thomas Roche and used here under Creative Commons license. | |
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CHEYENNE – Cheyenne attorney Karen Budd-Falen has raised a furor among ranching communities in Wyoming and elsewhere in the West by claiming that environmental groups are abusing federal statutes and collecting billions of dollars in attorneys’ fees from the public treasury.
In an October 3, 2009 guest opinion in the Wyoming Livestock Roundup, Budd-Falen said, “Environmental groups are receiving billions of federal taxpayer dollars in attorney fees for settling or ‘winning’ cases against the federal government.” (Emphasis in original).
On November 3, U.S. Representatives Cynthia Lummis (R-WY) and Rob Bishop (R-UT), writing for the Congressional Western Caucus, sent a letter to US Attorney General Eric Holder alleging abuse of the Equal Access to Justice Act (EAJA) by “certain organizations” and citing “alarming” figures presented by “an independent law firm.” The letter urged the Department of Justice to set up a searchable database detailing disbursements made under the act, which enables the payment of the attorney fees.
On November 7, Lummis and Bishop wrote a guest editorial in the Billings Gazette in which they repeated Budd-Falen’s charges and her incredible numbers, which they attributed to an anonymous “Wyoming-based law firm“: “Over the years, these groups have been able to force the federal government to pay out billions of dollars for attorney fees and costs.” Later in the month, Fox Television News picked up the story, interviewed Budd-Falen on camera, and commented, “Sometimes they [environmentalists’ lawyers] are paid if they lose.”
Attorneys from the environmental groups say Budd-Falen’s calculations are wildly inaccurate, deceitful and defamatory. An analysis by WyoFile indicates that Budd-Falen’s research contains no support for her assertion that these fee payments are anywhere near “billions”.
Lummis Wants to Shine
Rep. Lummis, moved by Budd-Falen’s figures, says she plans to introduce a bill in Congress on the issue. Her bill would require federal agencies to provide a readily accessible means of determining how much is being paid to whom under federal statutes authorizing attorneys’ fees to litigants—plaintiffs or defendants– who prevail in lawsuits against the government. Lummis said she decided to address the issue after she read Budd-Falen’s allegations and also learned that the federal government is no longer required to report on recipients and the amounts.
“The information I received from Karen Budd-Falen indicates that these fees might be quite large and that certain environmental groups might be receiving such large payments as to draw suspicion on my part as to what is motivating these lawsuits,” Lummis told WyoFile in a telephone interview this month. “I’m simply wanting to shine a light on this expenditure of taxpayer monies.”
Who Pays for the Lawyer?
In the United States, the loser in a lawsuit does not have to pay the winner’s attorney’s fees unless obligated to do so by a contract or a law specifically authorizing such an award. Many federal statutes do exactly that, authorizing a court to allow fees to a prevailing party in a proceeding in which the government agency, whether involved in the litigation as a plaintiff or a defendant, is found to have violated the federal laws and regulations. The Equal Access to Justice Act, which is the focus of Budd-Falen’s work, was passed by Congress to give citizens a tool to lessen the risk of challenging the power of the federal government by allowing them to recoup attorneys’ fees when they prevail– and also meet several other requirements that federal judges have broad discretion to apply.
Budd-Falen argues that tax-exempt environmental groups should not be able to use these fee-shifting laws because some of the groups are well-heeled and can afford to pay their own lawyers. She claims that some of these non-profit groups use the fee awards just to finance the filing of more lawsuits, a sort of self-perpetuating lawsuit industry.
On the other hand, environmental lawyers say Budd-Falen’s crusade is ultimately motivated more by a dislike of the substance of the decisions being made in their successful cases, rather than the awards of fees.
And others point out that the fee-shifting laws benefit many besides environmentalists. Two Northern Plains lawyers who have represented agricultural producers in cases where fees were awarded, believe these fee-shifting statutes are helpful to their clients.
“Given how expensive it is to sue the government, this is an important protection of an individual’s right to try to correct government mistakes,” says Susan Schneider, director of the graduate program in agricultural law at the University of Arkansas, which also houses the National Agricultural Law Center.
EAJA “is important overall as a safeguard of individual rights when dealing with government action,” Schneider said.
Route to ‘Billions’
According to a December 2009 article in the Wyoming Livestock Roundup, concerns about the attorneys’ fees going to environmental groups arose during a 2007 meeting of the Idaho Cattlemen’s Association, and led that group to join with a Farm Bureau coalition to form an organization called the Western Legacy Alliance.
Legacy Alliance President Jeff Faulkner stated in the article that people at the meeting “gave us $30,000 in five minutes” to investigate.
“We knew we wanted to de-fund environmental groups, but we didn’t know what was going on,” Faulkner said.
Faulkner said Budd-Falen has helped the group with research on the issue.
“We’ve had folks tell us that if we do away with EAJA [Equal Access to Justice Act], we’ll lose funding ourselves, “ Faulkner said in the article. “Karen pulled the same numbers for the Idaho court to see how much our side had garnered through EAJA and it was zero.”
In Budd-Falen’s widely reprinted 2009 opinion piece, she began her journey to the “billions” by noting that from 2003 until mid-2007, payments from the federal government’s “Judgment Fund” [1] totaled $4.7 billion. But the attorney fees to environmental groups, which are the target of her campaign, are mainly paid from the Equal Access to Justice Act[2], not the Judgment Fund. When Congress had re-authorized EAJA in 1985, it amended the statute by removing the Judgment Fund as a source of payment.[3] Payments from the Judgment Fund are authorized under nearly 100 federal statutes — including damages awarded under the Federal Tort Claims Act. Only seven of those are environmental protection statutes.
After stating the billions paid out of the Judgment Fund, Budd-Falen presented her finding that eight environmental groups had filed 1,596 lawsuits against the federal government between 2000 and 2009. Then she asserted: “On the other end, these same environmental groups are receiving billions of federal tax payer dollars in attorney fees for settling or ‘winning’ cases against the federal government.”
What “Billions”?
Representatives of environmental groups contacted by WyoFile said they had no objection to Lummis’ effort to make the payments for fees more transparent to the public. They did, however, express strong concerns about the accuracy of Budd-Falen’s work.
A representative of the Center for Biological Diversity, one of the environmental groups that Budd-Falen has highlighted in her report, sent her a letter in November focusing on her assertion that environmental groups were receiving “billions” in attorneys’ fees. That statement was “not only inaccurate and defamatory, it is misleading and deceitful regarding a matter of public concern,” wrote Brent Hendricks, general counsel of the group.
John Kostyack of the National Wildlife Federation in Washington, the nation’s largest conservation organization, said Budd-Falen’s allegation that the Federation had filed 427 lawsuits over the past 15 years was not close to being accurate.
“Virtually all our cases are as part of a coalition of environmental groups, or as intervenors or amicus [friend of the court], where we are not the lead attorneys receiving fees,” he said. “We pick cases carefully, choosing cases where the violation is pretty clear.” Sometimes, he said, the group intervenes to support – rather than challenge – the government’s decision.
WyoFile’s calculations show that the average attorneys’ fees award in each of the 1,596 cases Budd-Falen counted in her September report would have had to be $1.25 million to reach “billions” (i.e., at least $2 billion). In a later report, Budd-Falen raised her count to 2,875 suits involving environmental groups. Even using that number, the average award would have had to be nearly $700,000 to reach “billions.” Budd-Falen did not respond to WyoFile requests for documentation of her “billions” assertion. Even the Western Legacy Alliance, in a November press release, characterized Budd-Falen’s report as substantiating “nearly $10 million in payouts.”
Tracking the Dollars
No one contacted by WyoFile, however, disagrees with Budd-Falen’s assertion that the amounts paid as fees under EAJA are difficult to determine, because the government provides no central data system or tracking of these payments from the agency’s budgets.
EAJA was enacted decades ago, emerging from a Congressional concern – according to the U.S. Supreme Court – “that the Government, with its vast resources, could force citizens into acquiescing to adverse Government action, rather than vindicating their rights, simply by threatening them with costly litigation.”
The law provides that individual litigants with a net worth of less than $2 million; for-profit organizations with a net worth of less than $7 million; agricultural co-ops; and IRS-recognized tax-exempt organizations are all eligible to receive attorney’s fees under the EAJA.
The court must find that the individual or group seeking the fees prevailed in the suit, that the government’s position was not substantially justified, and that no special circumstances would make payment unjust. These restrictions are significant, requiring “more than just winning the case,” said Schneider from the agricultural law program in Arkansas.
Also, a 1996 amendment to the EAJA capped fee payments for litigation in court at $125 an hour unless the court finds that an increase for inflation is proper or that a limited availability of qualified attorneys for the proceedings justifies a higher fee.
In Budd-Falen’s September report, the only statistics that actually showed attorneys’ fees payments from EAJA was a report from the U.S. Forest Service of 44 fee payments totaling $1.7 million between 2003 and 2005. Nine of these payments went to non-environmental groups. In other Forest Service data, Budd-Falen also found fee reimbursements over the past 10 years of nearly $1 million to the Western Watersheds Project in Idaho.
Environmental Cases a Minority
A WyoFile review of a federal court database that included decisions by the U.S. appeals and district courts (but not cases settled before a decision) indicated that the vast majority in which EAJA payments were discussed were non-environmental cases.
For example, the search showed 2,307 cases involving Social Security; 1,347 cases involving veterans’ benefits; 921 cases involving labor or employment. By contrast, a broad search designed to turn up cases where EAJA was discussed in connection with words from the names of environmental groups or titles of federal environmental laws produced only 370 cases– and many of them were not cases actually involving environmental laws or groups. Several of the cases in this search resulted in livestock or commodity groups or landowners receiving attorneys’ fees from the government.
None of the most recent 25 court of appeals decisions produced by the search resulted in an award of fees to a conservation organization, but three of them resulted in a denial of fees to such groups, including the 10th Circuit’s reversal of an award of $175,000 in fees to Biodiversity Conservation Alliance of Laramie.[4] Two of the most recent 25 circuit court decisions, on the other hand, allowed a fees award to an agricultural group. In 2007, the 9th Circuit affirmed an attorneys’ fees award of about $18,000 to two Montana farming corporations that had challenged the U.S. Agriculture Department’s decision on crop disaster claims.[5] In a 2005 case, the D.C. Circuit found that a milk-marketing co-op was a “prevailing” party under the EAJA in a suit against the USDA over butterfat pricing, but reversed a portion of the $101,000 award for fees and costs because the district court had allowed a rate of $385 and $325/hour for some of the attorneys’ work.[6]
Three federal district court cases from recent years also illustrate these points. In a Minnesota case last year, the Sierra Club and other environmental groups successfully challenged a timber sale and road-building project in a national forest, and then sought $230,000 in fees. The Forest Service acknowledged that the plaintiffs were “prevailing parties,” but argued that the agency’s position was substantially justified. The court had found that the Forest Service’s decision was arbitrary and capricious, but nevertheless determined that the USFS position was reasonable, and denied the fees.[7]
In a federal court case last year in Iowa, on the other hand, the plaintiff livestock company sued the U.S. Department of Agriculture seeking judicial review of a determination that plaintiff had illegally converted wetlands. The plaintiff was successful and sought $57,000 in fees at $175 and $185/hour for both administrative and judicial proceedings. The government raised several objections, arguing that fees were not allowed for the administrative proceedings and that its position was substantially justified, but the court ruled in favor of the plaintiff and awarded the fees.[8]
In a 2005 decision by the federal district court in Billings, Mont., the Ranchers Cattlemen Action Legal Fund (R-CALF) was awarded $80,000 in attorney fees at $150/hour after suing to prevent the U.S.D.A. from relaxing a rule banning importation of bovine products from Canada. That case was dismissed in an early stage, after issuance of a preliminary injunction.[9]
In an interview with WyoFile, Budd-Falen acknowledged that most of her research looked at cases that were decided during the Bush administration, which most observers consider to have been much more friendly to business than to the environment. Yet, Budd-Falen said her research shows that the federal government was more willing to settle with and pay fees to environmental groups than to “groups representing the property owner side or commodity side of the issue.” She said career bureaucrats in “middle management” of the agencies have been making the settlements.
Budd-Falen does not believe that the ascendancy of a Democratic administration more sympathetic to environmental protections could turn the tables, making the EAJA more valuable to landowners or commodity groups and less needed by environmental groups.
“We have not seen any fall-off in the number of cases filed by environmental groups” since President Obama came to power, she said. “Look at their websites. They have announced they are stepping up suits about the listing of endangered species and considering global warming.”
Budd-Falen contends that many of the attorneys’ fee awards to environmental groups are granted because the agencies are unable to comply with tight procedural requirements in the laws. She argues that the fees payments drain funds the agencies could be using for programs to protect national forests, wildlife and recreation opportunities.
She also argues that it is unfair to allow groups such as Sierra Club or National Wildlife Federation to recover attorneys’ fees as “non-profit groups recognized by IRS” because their top officers earn mid-six-figure salaries and their net assets are far above the $7-million ceiling enforced against for-profit groups under EAJA.
Environmentalists Respond
John Buse, legal director for the Center for Biological Diversity, a Tucson, Ariz.-based group, said Budd-Falen has not responded to the group’s November letter. Buse charged that “Budd-Falen and the Congressional Western Caucus … are not concerned with the fees so much as with the fact that the illegal decisions that have been made by the federal agencies under environmental laws are being overturned” in lawsuits brought by environmental groups.
The National Wildlife Federation’s Kostyack agreed.
“Budd-Falen represents economic interests who would prefer that our environmental laws were not enforced,” he said. “Congress passed these laws with the idea that water would be kept clean and that wildlife would be protected and they recognized that citizen enforcement might be necessary to make that happen.”
Buse said that without the EAJA, the environmental laws passed by Congress would be eviscerated because citizens would be unable to challenge agency actions that violate those laws.Budd-Falen Firm has Sought Fees
Budd-Falen told WyoFile that in recent years the net worths of her firm’s clients have been above the maximum EAJA allows for the recovery of fees. A search of a database of federal court decisions showed that the firm has unsuccessfully sought attorneys’ fee awards for its clients in at least three lawsuits under EAJA or a similar statute that applies in criminal cases. In a 2000 decision, the U.S. 10th Circuit Court of Appeals affirmed a Colorado federal district court ruling that denied fees to her client, the Shooting Star Ranch, because insufficient evidence was presented to show that the client’s net worth met the EAJA maximum.[10] In a 1998 decision by a Colorado federal court, fees were denied to another of the firm’s ranching clients for the same reason.
In 1999, the Budd-Falen firm sued to recover attorneys’ fees for Harvey Frank Robbins Jr. after he had been acquitted of criminal charges of interfering with a Bureau of Land Management employee. The claim for fees was made pursuant to a statute allowing fees in certain criminal cases where the prosecution is determined to be in bad faith. The 10th Circuit rejected the claim, finding that the appeal of the district court’s ruling denying fees was not filed on time.
Subsequently, Karen Budd-Falen represented Robbins in a suit against two BLM employees for damages, alleging they tried to coerce Robbins into granting an easement to federal land. Budd-Falen sued under the Fifth Amendment and under the Racketeer Influenced and Corrupt Organizations Act. The case went to the U.S. Supreme Court, which in June 2007, affirmed the dismissal of the suit. Liberal-leaning Harvard Law Professor Lawrence Tribe did the oral argument for Robbins, and two liberal-leaning justices led by Ruth Bader Ginsburg dissented.
Some Ag Lawyers Value EAJA
In addition to Schneider at the University of Arkansas, WyoFile reached two agricultural law attorneys practicing in the U.S. farmbelt who have won attorneys’ fees under EAJA.
Attorney Thomas Lawler of Parkersburg, Iowa, said EAJA is a valuable asset for small producers.
“In both of my recent cases, the government had taken a position that was contrary to its own data and to the data we had from outside experts,” he said. “But fighting these actions is a long, involved procedure and is very expensive on a per-acre basis.” Even though EAJA provides the possibility of recovering fees if the challenge is successful, Lawler said, many of the producers who contact him eventually decide the risk of losing the case and losing the associated federal program payments is too high. They often decide to simply comply with the USDA decision.
Lawler said the efficacy of EAJA is also limited because of a U.S. Supreme Court decision several years ago that rejected the “catalyst theory” for deciding whether the litigant was legally a “prevailing party.” The court restricted attorneys’ fees recoveries to cases where the result favorable to the producer was the result of an actual decision by the court or hearing board, rather than a voluntary change in position by the government.
“We have gone into National Appeals Division hearings and we’ve convinced the government its decision was wrong,” Lawler said. “But if they voluntarily withdraw the action, we cannot collect fees. I would recommend that EAJA be amended to allow a fee award if the agency changes its position during the appeal process.”
Beth Baumstark in Bismarck, N.D., has represented agricultural producers “in quite a number of cases” where fees under EAJA were requested, including the 2007 Aageson case from Montana that went to the 9th Circuit. She said the EAJA “definitely” is an important vehicle for producers.
“Without the ability to recoup some of their fees when they are able to show that the agency action wasn’t justified, they wouldn’t be able to afford the challenges lots of times,” Baumstark said.
Baumstark said that the 8th Circuit, which includes much of the northern Midwest, has allowed fee awards for administrative proceedings for several years and has now been joined by three other circuits. This has caused the USDA recently to change its regulations to allow an award of fees in administrative proceedings across the country.
She said, however, that the USDA has not raised the strict $125-per-hour cap that applies to administrative proceedings, “so it’s still very limited in that respect.”
This story originally appeared on WyoFile.com. WyoFile is non-partisan public service journalism, focused on politics and public policy. Our goal is to supplement Wyoming’s news media with in-depth coverage and insightful commentary on issues critical to Wyoming residents. Our name is a play on words that reflects our journalistic purpose and our love for our unique and beautiful mountain state.
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Comments
That would be non-partisan in the Wyoming sense, eh?
Take for instance, The Biological Diversity Center has on their staff 19 lawyers while having 20 scientist/biologists and 17 administrative staff. 19 lawyers is a huge legal staff compared to the Karen Budd/Fallon law firm of 3 or 4 and they represent a huge segment of the west's resource users. Total the BDC's staff with about 15 other radical and moderate green groups and you have a unrelenting monster on the back of the government judicial system.
Maybe Karen overstated the Billions figure but the above green groups have been successful in getting Millions from the Gov't. on these lawsuits, and on the surface it looks like these groups are being very successful in using The Endangered Species Act to have their way with the western resource, and are affecting the economies and life blood of the west. They are out of control in my estimation. One prime example is the huge amount of farmland in California dried up last year due to an endangered fish.
There should be some middle ground in this battle but unfortunately the greens have found a way to get their way, sue, sue and sue some more. The Federal Agencies can't even do their jobs because they are tied up in endless lawsuits.
So all this reminds me of the Lyndon Johnson story about his seeking office in Texas, and he was in a tough campaign. Johnson tells his boys that they need to let slip a rumor that his opponent sodomizes young boys and farm animals, which brought about howls of disbelief from his campaign crew. They told him the guy was a good, church going, squeaky clean opponent, and nothing could be farther from the truth. Johnson told them he knew that, and they knew that, but the public needed to hear his opponent deny that he was a sodomizer of young boys and farm animals, to address the issue, and make his case for exoneration from a rumor.
We really still don't know the truth. We don't know the numbers. All we have heard is opposing claims. Either side can produce thin slices of selected truth, but the whole story is not exposed nor does Congress have any idea of the extent of the expenditures and to whom those expenditures are going. I know I have seen an EarthJustice billing in court papers. I don't know if the court awarded the money. I do know it was the legal arm of the Sierra Club, and that alone would preclude the payment. Of course, I suppose that EJ is and can represent some small not-for-profit client, and that is their basis for the claim for fees. If that is true, then how can EJ maintain its tax forgiven status if it is operating a legal firm for hire, and it is for hire, if the money claimed is awarded, and a dime of it goes to EJ. Or is that why EJ is no longer a legal entity of the Sierra Club? They would not be eligible to claim EAJA fees due to the Sierra Club's size. It would then follow that EJ is a legal clearing house, a holding company as it were, for legal fee claims and doling out the winnings after taking their "expenses." We, after all, talking about attorneys, tax avoidance, legal status, and strategies. Katey bar the door.
All we have read here is an opposing view of the Budd-Falen claims, brought by journalism with a dog in the fight. Perhaps the whole of the Budd-Falen contentions should be a parallel story so that both sides are presented by those who are involved.
The truth is that, if Karen were on the correct side of the law, she would be getting plenty of help in winning both in the lower courts and, if still necessary, on appeal. It doesn't seem that she gets much collegial help, although she is certainly very well financed herself. It is also true that attorneys flock to help her opponents, even on a pro bono basis, 1) because they believe, as a result of their education and studies, that Karen is on the wrong side of the law and they do not want the wrong side of the law to prevail and 2) because, frankly, so very many of them believe that Karen is too busy marketing herself at a far fringe end of politics and not busy enough trying to study the case law and see the truth in her opponents' arguments. Coming out of denial and seeing the truth for what it is will be the only way she can ever be more successful. That goes for Klumker and Bearbait as well. When you're wrong, you're wrong. Educated thinkers see it and don't want to help those who are perpetually and persistently wrong.
They take all knowledge to be their provence.
Congress passes laws. The Executive Branch, the President signs the laws, and Administers the laws. The Executive branch writes administrative rules to carry out the laws AS THEY READ THEM, and print those rule in the Federal Register. Then they carry out the laws using the rules they concocted. If there is any doubt about those rules and the administration of those laws by the Executive Branch, then the Judicial Branch is there to be the arbiter of what the intent of the Congress was, and what the law says must be done IN THE OPINION of the Judge hearing the case. If you think the judge was wrong, then appeals are heard in the several US CIRCUIT COURTS OF APPEALS. No new evidence can be produced. Only procedure and judgement can be further litigated. Lose there, and you can appeal to the SUPREME COURT. That is the end.
That the Supremes meet and only take one case in a thousand, or whatever it is, indicates that Congress is doing a crappy job of writing legislation, and their lawyers are not the best. The never ending conveyor belt of crappy law from Congress, and Executive branch administration of the law as they see it from how it is written, indicates to me that we are a nation of laws, many of them seriously flawed. In the case of the USFS being hog tied, f--ked, fouled and fly blowed at every turn, all that indicates is that the laws are not clear, the USFS has a piss poor workforce (which is to be expected from an employer who has dismissed education and experience for gender, race, "the differently enabled", ad infinatum), and there is too much success and too much money to made by suing them at every decision. Taking candy from babies works until a big brother shows up. Big brother has not shown up. Big brother is involved in a sibling rivalry contest of wills and has no time to tend to anything else but congressional warfare and re-election.
It isn't that one person or another is "one the wrong side of the law" but that the law is not clear, concise, or able to be administered as currently written. And, when specifics are replaced by generalities in the law, that law can be litigated for all time. I think about Lincoln administratively freeing the slaves, and that it took a century after that to have a Civil Rights law. Evidently, there is nothing in the Constitution that protected freedoms for people of color. Nor does it today. It is the Civil Rights Act that produces the legal impetus to protect the few from the many. I wonder when there will be a law to protect the rural minority from the tyranny of the urban majority. Or does that put me on the wrong side of the law?
As for Karen seeing the "real truth" and getting "on the right side of the law", one only has to follow the money and see the real world out here. Just dissect the Biological Diversity Center and its operations and see how they are financed and how they are abusing the legal system to have their way.
Karen is a champion for the rural minority and is a true patriot. She is a ranch girl from Wyoming and has deep roots in the rural lifestyle of the West and she is making a difference. Get real "real mike" she is on the right side of the law and does so professionally and with integrity and a sense of what is right. I have witnessed her in action for many years and she does a great job doing what she does and is by far outnumbered by opposition lawyers and as I said CBD currently has 17 hot shot lawyers on their staff. This is just of the fraction of the multitude of green movement lawyers, and they are using the EAJA to their advantage to hire more lawyers to deal the western rural lifestyle a death blow. Never the less you have not heard the end of Karen Budd-Falen and those of us in the trenches fighting to save our custom, culture and economies.
The newest move by the BDC is that they were finally successful in getting the Obama Administration, US Fish and Wildlife Service to declare the need for critical habitat for the jaguar and the CBC has already mapped out 62 million acres in the southern US that they are proposing for critical habitat. This is just another step in their quest to turn much of the West into "Wildlands" and with the Almighty " Endangered Species Act" they are pretty much having their way, as long as they have access to the courts and many liberal Judges on the benches. They will continue to do this, especially with the monies realized by the EAJA.
How do we find out from our elected government if that is true or not if someone doesn't get a Congressman or Senator to ask? For what purpose do the Senate and Congress convene committees and ask people to testify before them, except to find facts? There seems to be a lot of insecurity as to Falen and her legal practice. I believe she serves the noble purpose of representing "the other side", which is pretty much ingrained in our whole American legal system, and there is a fear she might upset the wrong apple cart.
You are correct Tim in that is all about who controls the land. The ones who settled the land and their ancestors have had control for 150+ years and have come along way and for the most part these people are doing a better job of land stewardship and environmental concern than ever and much of the federally managed lands are in better shape now than ever.
"Exploitation of the public resources of the west" now that's a debatable subject. Karen is only trying to protect those people that are responsible land managers and combat trumped up science of some so called endangered species to counteract the so called sage brush rebellion people. We see first hand daily how their (radical greens & sympathetic federal officials) system works. Spotted Owl threatened/endangered yeah right! Willow Fly Catcher threatened/Endangered yeah right, Spike Dace /Loach Minnow threatened/Endangered yeah right. On and on and lawsuit after lawsuit do these earth worshipers go? They are being very effective and their sue, sue system is working very well and getting paid by the taxpayer to do so. So far most of the resource user group have just been on the defensive side of the lawsuits but they are finally wising up and going on the offensive, but it is hard to beat the lawyered up green groups and their big foundation money support i.e. Pew Charitable Trust, Turner Foundation and etc.
I also want to know if the court costs include the costs of failed "studies" out on the actual site. Here is an example: On a fire salvage project, they sent out an army of people to sample cambium layers to see if the tree's bark survived the blaze. That used to be a standard Forest Service process to determine if a tree with existing green foliage will survive the coming months. The eco-group tested hundreds (and maybe even thousands) of trees within the burn. However, their sampling was fatally-flawed, as they sampled completely dead trees, AND they sampled the bark at 4 feet up the tree. Now, if they had actually sampled green trees at 4 feet up the tree, they would have found that they all had live bark at that height, ignoring the probability that the bark at ground level was dead. Chances are, the eco-group passed on the cost of that botched "study" to the court costs.
In the end, the Ninth Circuit Court decided that the Forest Service's didn't adequately study their plan's effects upon certain woodpeckers, a "species of interest" and not on the ESA list. This is despite treating only about 50% of the entire burn area. The judges also decided that the Forest Service's guidelines for cutting fire-damaged trees were NOT wrong, just "confusing". The blamed the Forest Service for being too complex for the American public to understand. Do they also say that about medical and technology cases?
It is very easy to litigate against the Forest Service because of the complex and conflicting rules, laws and policies currently on the books. The Ninth Circuit Court has some judges who are worried about being blamed for our ongoing forest disaster in the west. Some have gone public in supporting the expertise of government scientists, finding that the "scientific witnesses" brought forth by the eco-groups are lacking in credibility, skills and objectivity. We need to limit litigation by excluding certain kinds of projects that don't significantly affect applicable eco-issues.
The key to being a "counterbalance" is the ability to compromise. Otherwise, you are simply an obstructionist, preferring to watch forests disappear instead of restoring them.
http://www.earthjustice.org/assets/docs/earthjustice-990.pdf
Why are none of our environmental reporters not interested enough to find out how much each of the litigants in lawsuits are being awarded? Why are they not made public if they are on the up and up?
Has anybody else noticed how Right-wingers love to rail against lawyers and subsidies and unless taxdollars are being lavished upon their favorite entitlement, usually going to some big business? And how many of these lawyer bashers could 1) get admitted to law school, and 2) pass the state bar exam?
Moreover, the article we're discussing said: "...the vast majority in which EAJA payments were discussed were non-environmental cases." So, let's throw the baby out with the bath water.
BTW, I also am against bailouts and big military.
Tell me again why it is better to just turn everything over the enviros including our food production, energy production, and our money. What have they done to make life better for people? Can you name a single research they have funded for alternative fuels or a way to produce food without using land?
Hmmm... Your extrapolation of imaginary statistics is fascinating. You should write a book.
The big battle is over who controls the natural resource and the focus of the green groups is to remove all public lands ranching and even most private land ranches that they feel are needed for their wildlife corridors and their water and riparian areas.
Here is a quote from a gentleman from Nevada. "I've hunted the West for over 50 years. The 1950's seemed the best hunting and there were grazing animals everywhere. Flocks of sagehen so thick you thought they were never going to stop rising. Big game everywhere. We would take an evening drive just to see some trophy-size bucks. Try doing that now. Big and small game has decreased right along with the decrease in grazing. That's not a coincidence. That's a fact."
Just take a trip to southern Arizona to the Buenos Aires National Wildlife Refuge in the Altar Valley southwest of Tucson, to see what happens when you stop grazing. The gov't bought out a big ranch in the bottom of the valley, the very prime portion of that whole area. The cattle have been gone for many years. This was done to save the "Masked Hooded Bobwhite". They are not there. the whole refuge is grown up in heavy vegetation and tall rank grasses. There are not hardly any jackrabbits there either. No deer no nothing. But just go out on the edges of the Refuge where grazing still takes place and viola, there you will find them.
There are many examples of this everywhere in the West. After all grass is a naturally recurring resource and with much of the Federal lands in the West set aside for grazing it is a vast resource that is being converted into meat. Not many years ago as much as 22% of the total feeder cattle going into feedlots came from these Federal lands. That amounts to a lot of hamburgers.
In this day and age of modern range management being implemented with professional range managers in both the Federal Agencies and most of our western Colleges, we have and are seeing great strides in forever removing the old stigma of the over grazing that took place before the turn of the century and up until the Agencies starting managing the resource. Our ranges for the big part are in better shape now than ever.
Ahhh, yes Donald you get your beef from Iowa (fat corn fed) rather than nasty grassland grazed beef produced locally. In the process you manage to increase the carbon footprint of your lifestyle. Good for you, you are really solving the problems you mention!
I love chicken, but prefer locally grown, are you aware of the chicken raising process? You might want to check it out.
This assurance is based no doubt upon your profound experience as a futurist?
As it now exists, you do eat food from outside the US that is produced using chemicals for insect, weed and disease control, chemicals whose use is not allowed in the US for the reason that they do have human health issues as determined by the USDA and EPA. Some of those pesticides also have wildlife consequences that preclude their use in the US due to their spread by air and water in the environment, and proven harm to critters.
However, hormones are found naturally in cows milk. BST is a natural hormone produced by lactating cows. Estrogen is produced by cows and is found in their milk. On the other hand, the particular form of estrogen found exclusively in birth control pills is measurable in most waters of the US where treated sewage water is allowed to enter waterways as "benign" and "treated" wastewater. Some of that water is made potable down stream. The hormones remain. And so does a lot of unused pharmaceuticals that are flushed down the sink or toilet.
Much of the soy material now entering the US is from GMO seed sourced soy plantings. To put that turd exclusively in the US farmer's pocket is disingenuous and shallow minded. It is grocery store cost and appearance that drives the market, and the US consumer wants only "pretty" and vigorous looking plant material on the produce shelves, and in the meat market, all at competitive, cheap prices. Thus imports arrive daily. The one thing that will drive US consumers to more American produce and meat is that our debt and resulting devaluation of the dollar will inhibit imports just due to currency exchange rates that make it more expensive for offshore production. The balance to that is US production has more export opportunity, and thus the US supply can become limited by US exports of food, and higher domestic prices will follow, all because of the dollar falling in value against other currencies.
Big agricultural enterprises that export or import will have a currency trader in-house to hedge fluctuations in the dollar against the Euro, pesos, and Asian currencies, just like Big Oil does today. That would be an interesting consumer play with local retail banking. You could have your bank hedge your imported or domestic food costs by currency hedging on behalf of your bank account. Maybe your fossil fuel spending, too. The dollar goes down, crude oil goes up in dollars per barrel.
I am a working food producer. We have food standards to meet in the US and in Asia, as some of our production is exported. Add to that salmon stream protections, introduced exotic pests from fresh food imports (Japanese two spot vinegar fruit fly, Dros. Suzukii, the latest) with no known controls, and an EPA and USDA recommendation to use an OP for partial control (which you can't use anywhere near open water or streams) is patently insane. I am an advocate and implementer of IPM (integrated pest management) which is creation of an insect environment with healthy predator populations to control noxious insects, and using a government recommended broad spectrum insecticide that will wipe out 7 years of IPM establishment due to lax APHIS and Homeland Security controls on the dock and a new pest going viral is government at its worst. I just told the farm principals to buy Federally subsidized farm revenue insurance. Let the American tax payers pay your bills if the crop is wiped out while I use Best Management Practices as expressed in our GAP and EU GAP proctored farm practices certification.
The Feds just tell us they can't inspect ALL the containers that arrive on our shores. To do so would cost too much and plug the system. So take them off the dock and ship them by rail to quarantine and impound yards on the way to final destination. Do the terrorist inspections on the docks offshore, and here, and do the 100% inspections in isolated impound yards along the railroad tracks in the trackless interior of the US. And make the importers pay the cost. That will create tens of thousands of jobs, drive new construction and rail building, and instead of new taxes, the consumer pays for it all in higher prices. Or they buy American which pays American wages and uses American suppliers and resources.
Just another radical farmer exposing the other side of the food equation. Burn-downs to find illegal pesticide use in food for US consumption. All of it gets inspected. Random tests. Hey, just like the Japanese have done for 50 years. I can grow for Japan and have for 12 years. They inspect all food the same way. Japanese live longer than Americans. Eat better. So should we.
Yes, I would say the elk "leveled off, decreasing somewhat". The 19,000 in the northern herd has been in the 6000 range for the last 3 years, half of which are now wintering inside of the Park. The Norris Firehole herd which has been in the 550-650 range ever since they have been counted was down to 108 adults with a 0-4 calf retention rate, suspect less now since only an occassional; bull or cow shows up in the area. The FWS/NPS sudiously avoid counting any of the other herds.
There were a total of 2 dozen cows on teh Madison last fault
Are they going to count this year? Who knows, first there was not enough snow, then too much snow, the last I heard they are waiting for the weather to clear.
As for trees and bushes growing, the studies done on the elk who are chased so much they cannot graze show they are browzing in trees as a means of protection. So how does that limit the browzing???? Of course the wolves did get rid of most of the moose, so they are not eating willows anymore, so I guess that makes you happy. You must like willows a lot to prefer them to elk and moose. By the way I have a photo of a wolf eating a beaver, so I guess that benefits them, and also what is not often reported beaver were reintroduced north of Yellowstone and they are probably what is migrating into the park.
Do you want more info on what is actually happening? By the way what is going to happen to the bears with the wolves killing off the elk?
What Canadian cows are in the park giving disease to the wolves?
That set the tone for the whole rest of the semester; that and watching W.C. Fields one-reelers movies on Friday afternoon in the same class.
But I did come away with one other axiom from that learned hall: " Everything in Wyoming is political, except politics, which is personal..."
Explains everything about my home state, doesn't it?