Use of Equal Access to Justice Act defended

Local environmental groups concede that reforming the federal Equal Access to Justice Act will limit their ability to challenge logging projects and other federal land management decisions, but they also note that what’s bad for them also would be bad for the industry and individuals.

Sen. Steve Daines says the act should be changed and groups that want to sue federal agencies should have to post a bond.

The Equal Access to Justice Act was created by Congress in 1980 to protect small businesses against overbearing government regulation. Under the act, plaintiffs can recover court costs and attorney fees if the federal government’s position in a case is found “to be without substantial justification.”

According to a review of federal court cases, the Swan View Coalition has been a plaintiff in 22 federal district court cases since 1987, and 15 have gone on to Ninth Circuit Court of Appeals. Friends of the Wild Swan has been a plaintiff in 37 district court cases, and 15 have gone on to the appeals court.

Not all the cases were filed against the Forest Service. In 1990, Swan View sued the U.S. Fish and Wildlife Service to stop grizzly bear hunting in the region, the group’s chairman, Keith Hammer, said.

Hammer claims Swan View doesn’t oppose commercial logging on federal lands, and most of the lawsuits they filed to challenge timber sales were to protect grizzly bears and to force the Forest Service to adhere to its own road standards.

Wild Swan director Arlene Montgomery said most of their litigation centers around bull trout and water quality standards. She claimed it took five lawsuits against FWS to get bull trout listed as threatened under the Endangered Species Act. Like the Equal Access to Justice Act, the ESA has a provision that allows citizens to challenge projects and recover costs.

Hammer and Montgomery agree that filing lawsuits is an expensive process. Prior to filing any lawsuit, they must review documents, attend public meetings and field trips, and follow a mandatory administrative appeals process. If they don’t go through the process, they have no standing in court, they said.

“We’re very involved from the beginning,” Montgomery said. “But if we find there’s something inadequate with analysis, we will pursue litigation … We don’t lick a stamp and file a lawsuit.”

Montgomery said Friends of the Wild Swan has about 350 members and operates on a “shoestring” budget. A lawsuit can cost as much as $30,000, she said. If they would have to file a bond to cover potential revenue lost by a timber sale, it would be tough to challenge a project, she said.

The Equal Access to Justice Act doesn’t just cover environmental lawsuits. It covers anyone who sues a federal agency, from veterans seeking benefits to the elderly in Social Security cases.

Of note locally is the case of logger Enos Miller, of Rexford. The owner of EM Logging was awarded a Forest Service timber contract in August 2010. The Forest Service terminated the contract in March 2011, citing “repeated and ongoing disregard for the terms of that contract almost from the start of the logging and hauling operations.”

The Forest Service claimed Miller wasn’t following routes set in the contract and ignored weight limits. The Civilian Board of Contract Appeals, which adjudicates Forest Service contract disputes, ruled in support of the Forest Service.

Miller appealed to the Ninth Circuit and prevailed. He’s seeking $2.5 million, in addition to repayment of the $231,000 down payment he made on the contract and the $119,000 performance bond. Miller will use the Equal Access to Justice Act in an attempt to recover his court costs.

“We have asked under the Act to recover attorney fees,” Miller’s attorney, Allen Payne, confirmed last week.

But when environmental groups are successful, people lose work, which fuels the political fire.

A lawsuit last summer challenged timber sales on the Stillwater State Forest that affected both F.H. Stoltze Land & Lumber Co. and Plum Creek. Friends of the Wild Swan, the Montana Environmental Information Center, and the Natural Resources Defense Council claimed new roads built to access the timber would pose a threat to grizzly bears, even though the state had plans to gate them in a “seasonally secure” fashion.

The court agreed and halted the sales — at least when grizzlies were awake. Logging could go forward in winter, but loggers said they couldn’t access the timber because of deep snow. As a result, both mills announced cutbacks.

Cases like that fire up the debate, and Forest Service Chief Tom Tidwell has weighed in on the subject. Under questioning from Sen. Daines in February, Tidwell agreed that lawsuits are a hindrance.

“The litigation definitely does impact, and it’s not just the litigation. When we get a temporary restraining order, we have to stop and wait,” Tidwell said. “Every time we get a lawsuit, the same staff that would be preparing for the next project, they have to prepare to go to court.”

Earlier this month, Tidwell told Daines that Montana’s timber output could be increased from the current 113 million board feet per year to 300 million.

“Three hundred million board feet is very reasonable,” Tidwell said.

Environmental groups are already questioning that figure, which inevitably could lead to more lawsuits.