Little more than a year ago, North Idaho forestry and logging industries could hardly see the road in front of them.
The obstacle was a blizzard of lawsuits, filed under the umbrella of the Endangered Species Act by various environmental groups.
These legal challenges cost a staggering amount of time and money, holding up business and emptying taxpayer pockets to the tune of $30 million just since 2009.
In that same time frame, the Department of the Interior paid out $14 million in ESA-related attorneys’ fees.
“These weren’t serious suits meant to protect species of birds or animals,” said Bob Boeh, vice president of government affairs for Idaho Forest Group. “A few fringe groups and their attorneys saw a way to run out the clock on timber projects, and make plenty of money at the same time. They’d sue over anything, stall forever, then go for a ‘sue-and-settle’ payout.”
You could almost hear Boeh’s teeth clench as he talked about the situation.
“It sounds implausible when you think of serious environmentalists,” said Shawn Keough, executive director of the Association of Logging Contractors, “but when I’m in my cynical mood, I suspect that for a couple of these organizations, filing lawsuits became a funding mechanism.”
Consider: Since 1990, just two groups — WildEarth Guardians and Center for Biological Diversity — have filed in excess of 1,500 lawsuits, or roughly one per week over nearly three decades.
But now, times have changed: Boeh and Keough both speak optimistically about a completely new playing field.
A business-friendly Congress, with encouragement from the Trump Administration, has decided to try putting the hammer on useless lawsuits and the attorneys who file them.
A bill introduced by Rep. Bruce Westerman, R-Ark., would virtually eliminate these “strategic” suits altogether and replace them with an arbitration system.
The measure is called the Resilient Federal Forests Act of 2017.
“The Westerman bill follows up on an initiative developed by the Western Governors Association,” Boeh said. “The idea was to find an alternative, so that genuine environmental interests could put across their legitimate issues, but that would also leave industry with equality.
“The result is an idea that would be modeled after baseball arbitration, where both sides put their proposals in front of a neutral arbitrator — who ultimately judges their relative merits.
“And just like in baseball arbitration, there’s no middle ground. The arbitrator chooses one side or the other — and we have the advantage of facing people who don’t really have actual solutions.”
That sounds like a recipe for disaster to Randi Spivak, director of the public lands program for the Center for Biological Diversity.
“We’re extremely opposed to the Westerman bill,” Spivak said Friday. “Forcing us to arbitration rather than going through the court system is denying us a fundamental right. Everyone should have access to the legal system, and binding abitration eliminates that.
“Why shouldn’t we have our day in court? Why should the forestry industry get this special exemption? The answer is obvious: This administration is catering to timber interests.”
Westerman’s bill (H.R. 2936) isn’t likely to make it to the floor of the House as written, especially since there’s a clause buried in one earlier section that states: “No amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay any fee or other expenses under such sections to any plaintiff related to an action challenging a forest management activity carried out pursuant to this Act.”
In other words, no money for lawyers.
“Some of it is pretty strong,” Boeh admitted with a slight chuckle, “but the arbitration provision can survive because it makes sense, and it’s fair to everyone.”
Meanwhile, another bill is being discussed in the House Natural Resources Committee.
This one (H.R. 3131) was introduced by Rep. Bill Huizenga, R-Mich., with several co-sponsors — including Idaho Rep. Raul Labrador.
Despite a long title — Endangered Species Litigation Reasonableness Act — the bill is pretty straightforward.
Basically, it intends to bring ESA lawsuits into line with other provisions of the Equal Access to Justice Act (EAJA).
That act allows the prevailing party to collect reasonable attorneys’ fees in any litigation against the federal government.
But the EAJA also caps those fees at $125 per hour, “unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.”
However, the Endangered Species Act, passed in 1973, places no cap on hourly attorneys’ fees and does not require a litigant to prevail in order to recover those fees.
As a result, lawyers in some ESA cases have been paid $750 per hour. These special interest attorneys representing environmental groups argue that their expertise is specialized enough to justify substantial, uncapped fees.
Huizenga’s measure, however, would require ESA litigants to abide by the same rules as others bringing suit against the federal government — requiring plaintiffs to prevail to request fees — as well as setting that $125 per hour cap on their attorneys’ work.
The Huizinga bill doesn’t pass muster with the Center for Cultural Diversity, either.
“We strongly oppose H.R. 3131. The $125 cap on legal fees is not enough for most legal markets to ensure that everyone that can afford to challenge the government on both sides of an issue are able to retain legal counsel,” said Brett Hartl, director of government affairs with the Center for Biological Diversity. “This is just another barrier to court access. Even Republicans have acknowledged in unrelated legislation that caps should be raised and that the proper standard should be reasonable fees as determined by the judge.”
Either of these bills currently in the Natural Resources Committee, some combined version or another, similar bill would dramatically change things in all facets of the timber industry.
“There’s a definite sense of optimism with this administration,” Keough said. “Clearly there’s a mood for reigning in frivolous lawsuits that can be costly for no reason.
“Without all of the wasted time, we wouldn’t have wood rotting so that it can’t be sold.
“Arbitration is the right answer. Judges shouldn’t be making land management decisions. It’s not their area of expertise.”
However the bill or bills ultimately are worded, both Boeh and Keough agreed that sometime in the near future, undeserved paydays for some bogus “environmental” groups and their attorneys could be over.
“Finally,” Boeh said, “we may have something fair for everyone.”