This West Is OUR West

Interior Action to Shine Light on Attorney's Fees & Costs

May 29, 2019 | From the office of Rep. Russ Fulcher

SPECIAL-INTEREST LAWYERS HAVE BEEN ALLOWED TO BILL FEDERAL AGENCIES FOR EXORBITANT RATES AS HIGH AS $750 AN HOUR

WASHINGTON, D.C. – Today, Rep. Fulcher joined the Western Caucus to applaud the Department of the Interior’s action to increase transparency and accountability in attorney’s fees and costs by making important information publicly available online:

Rep. Russ Fulcher commented, “In Idaho, hundreds of thousands of acres of timber burn every year– decimating wildlife and pumping tons of carbon into the atmosphere. Ironically, many of those responsible for legal action that prevents proper forest management, call themselves ‘environmentalists.’ Our environment doesn’t need those kinds of ‘environmentalists.’ I look forward to seeing who we can thank for some of our wildfires.”

Background:

Principal Deputy Solicitor of the Department of the Interior (DOI) Daniel Jorjani recently issued an important Department-wide Memorandum requiring the creation of a publicly accessible litigation webpage that will track and disclose important information in relation to attorney’s fees and costs paid as a result of consent decrees and settlement payments entered into on behalf of the Department of the Interior.

Specifically, the Memorandum directs the Associate Solicitor for the Administration to work with the Office of the Chief Information Officer to create within 30 days, update and maintain a section of the Office of the Solicitor Litigation webpage entitled “Attorney’s Fees” that specifically includes the following information:

• The case name and citation (including a link to the complaint or amended complaint) to all litigation in which attorney’s fees and costs are paid from any source, including money paid pursuant to the Equal Access to Justice Act (EAJA) or from the Judgement Fund;

• The total amount of attorney’s fees and costs paid (including all payment of interim costs and fees);

• The name of the party(ies) to whom the payment is made.

To view the Memorandum, click HERE.

The memorandum does not apply to attorney’s fees paid pursuant to personal matters, tort claims or contract disputes, including but not limited to, bid protests or to de minimis fees or cost payments of less than $10,000.

The Memorandum is consistent with the goals of Secretarial Order 3368 issued in September of 2018 which directed the Solicitor to take a number of steps to inform the American people of Department litigation costs associated with settlement agreements and consent decrees.

In March of 2019, S. 47, the Natural Resources Management Act, was signed into law. This lands package included H.R. 752, the Open Book on Equal Access to Justice Act, a bill which requires tracking and disclosure of attorney fees paid out from environmental lawsuits in an online, searchable database. Prior to 1995, EAJA payments were approximately $3 million dollars annually.  Unfortunately, EAJA operated in the dark for more than 20 years and payments skyrocketed.  At one point, the Government Accountability Office confirmed that we did not even know the totality of these costs as most federal agencies didn’t even bother trying to compile this information.

Ryan Yates of the American Farm Bureau Federation testified that although EAJA has a “fixed hourly rate of $125” this cap is often waived as “courts uniformly recognize that environmental law requires “special skill.'” Shockingly, special-interest lawyers have been allowed to bill federal agencies for exorbitant rates as high as $750 an hour as a result.

Yates also testified, “Only recently has the Judgment Fund begun posting information regarding how much money it pays out each year, including attorneys’ fees. This is a first step, and has provided important information—including, for example, that in fiscal year 2016 alone the Judgment Fund paid out over $3.8 million in attorneys’ fees just for environmental litigation.”

A Daily Caller News Foundation investigation revealed “federal agencies paid out $49 million for 512 citizen suits filed under three major environmental laws during the Obama Administration.” Marita Noon reported, “Over a three-year period, 2009-2012…American taxpayers footed the bill for more than $53 million in so-called environmental groups’ legal fees—and the actual number could be much higher.” The Washington Examiner reported in February that the Center for Biological Diversity (CBD) had already sued the Trump Administration more than 100 times. CBD has been awarded attorney’s fees despite having nearly $20 million in net assets.