Last week, I wrote about an Illinois lawyer and farmer who defeated USDA’s Natural Resources Conservation Service on four occasions. The lawyer-farmer sought repayment of legal fees and expenses under the Equal Access to Justice Act (EAJA). The Illinois farmer believed EAJA gave citizens access to the judicial system to recover legal fees and expenses. He was wrong because he was denied any repayment under the EAJA. A judge said USDA was “substantially justified” in bringing the four cases.

A study of the EAJA was published in October 2014 by the Strata Policy Group. Two PhDs from the Utah State University and numerous student research associates studied the problems with EAJA financial information and some case studies. The report is enlightening and should be read by all those who believe themselves to be ordinary citizens and want to defend themselves.

Congress provided a method for a citizen to go to court after winning to get his or her legal fees even if funds are limited. EAJA is known as a “fee shifting” statute and every farmer should be aware of what it offers.

In the Illinois case, the farmer won four times, but was denied any EAJA funds because a USDA judge ruled NRCS had a justifiable reason to pursue the Illinois farmer. The EAJA legislative history quotes former U.S. Sen. Gaylord Nelson, D-Wis., who wanted a federal government that would protect public health and safety while controlling government agencies “…which [are[ so powerful, intrusive, and arbitrary that [they]t pose a menace to individual and economic freedom.”

In October 1980, the EAJA became law. President Carter said EAJA “…strikes a fair balance between the government’s obligation to enforce the law and the need to encourage business people with limited resources to resist unreasonable government conduct.”  

Former Sen. Pete Domenici, R-N.M., believed that a small business or individual citizen “…should be reimbursed for his or her attorney’s fees and costs if the government’s position was not substantially justified. …We must eliminate the possibility of Pyrrhic victories. …Equal justice is not available when one cannot afford to fight.”

The Strata report reviews aspects and history of EAJA. One report cited by Strata evaluated U.S. District Court complaints filed by environmental groups. It found 35% of environmental groups’ complaints were filed because a government agency had missed a procedural step under the National Environmental Policy Act (NEPA).

Another review of 400 cases filed by the Western Watershed’s Project and the Center for Biological Diversity attacked livestock groups in the West seeking to stop ranchers’ use of grazing lands. The Wild Earth Guardians had 46% of their cases filed to enforce Endangered Species Act time frames.  According to the report, environmental attorneys’ fees for these cases ranged from $500 to $750 per hour and were paid.

The U.S. Forest Service, a division of USDA, has been a favorite target of environmental groups using EAJA to be paid more than $6 million in fees from 1999-2005. Earthjustice, another environmental group, has received over $4.5 million for attorneys’ fees. 

A problem associated with EAJA is obtaining accurate numbers from government agencies on how many dollars they pay out in EAJA cases to environmental groups. According to the Strata report, the Government Accounting Office in 2012 contacted 65 agencies in the federal government and found agencies did not track or could not provide any information on how much money they had paid out under EAJA.

A number of congressmen have sought to determine how many dollars are being paid by various government agencies to environmental groups and others pursuant to EAJA.  

Rep. Cynthia Lummis, R-Wyoming, believes the EAJA is “…one more layer to a growing pile of evidence that proves the fleecing of Americans by some big, so-called environmentalist groups.” Sen. David Vitter, R-La., states “Taxpayers have been on the hook for years while Big Green Trial Lawyers have raked in millions of dollars…..we’re not even sure how bad the problem really is.”

The Strata report highlights the fact EAJA has been hijacked by major environmental groups. The individual has little or no chance to money provided by EAJA. Sad!

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.