Karen Budd-Falen addresses loopholes, calls for EAJA changes during Range Rights conference

By Emilee Gibb 

“We’ve been working on the attorney’s fees reimbursement issue since 2009, and the idea that the federal government basically pays environmental groups to sue the federal government to stop our use of the land is still hard for me to understand eight years later,” said Cheyenne Attorney and Budd-Falen Law Offices LLC Co-Owner Karen Budd-Falen. She discussed the current use of federal funds to reimburse attorney’s fees during the 2017 Range Rights and Resource Symposium on May 19-20. Judgment Act Budd-Falen explained there are two basic ways the federal government reimburses attorney’s fees, the Equal Access to Justice Act (EAJA) and the Judgment Act. “The Judgment Act is an act that is simply funded by the government every year,” said Budd-Falen. “It’s not something that Congress renews. They just put money into this Judgment Fund.” The Judgment Act applies to litigation under the Endangered Species Act, the Clean Water Act, the Clean Air Act, Resource Conservation Act and other similar statutes. She continued, “It is a fee shifting statute that says ‘a prevailing party’ should have their attorney’s fees reimbursed by the federal government.” According to Budd-Falen, the interpretation of a prevailing party by the court is the party that achieves their desired outcome. Equal Access to Justice Act  “EAJA applies to cases brought under the National Environmental Policy Act (NEPA), Federal Land Policy and Management Act (FLPMA) or the National Forest Management Act,” said Budd-Falen.According to the act, the prevailing party should have their attorney’s fees reimbursed. “EAJA was actually signed by President Ronald Reagan because, what he saw and what Congress saw at that time was the federal government in some cases was taking positions against a private business or a private landowner, and he thought it was a way to equalize the playing field,” she explained. Shift in use  According to Budd-Falen, the acts weren’t abused until 1995 when President Clinton signed the Paperwork Reduction Act.“One of the pieces of paper they reduced was any accounting for the spending or reimbursement of litigation fees to these groups,” she said. Budd-Falen explained that loopholes have been created in the EAJA and Judgment Act funds. The $8 million net worth cap now only applies to for-profit entities, said Budd-Falen. “For non-profit public interests, net worth doesn’t matter,” commented Budd-Falen. “The Sierra Club Legal Foundation in 2013 was worth, by their IRS forms, $56 million. Sierra Club gets their attorney’s fees reimbursed.” Another loophole Budd-Falen discussed was the attorney’s fees reimbursement amount cap...more

HT: Marvin Frisbey