Hastings, Gohmert preside over roast of ESA attorney fees

Today’s House Natural Resources Committee, meeting in Room 1324 of the Longworth House Office Building, held the latest in what has turned into a multi-year series of hearings on the federal government’s payment of attorney fees to plaintiffs bringing Endangered Species Act lawsuits.

In the committee’s telling, virtually all of those taxpayer dollars have gone to environmental groups, which are staffed largely by people who have enough money of their own to afford the low wages. They then use those fees to fund even more lawsuits against the Fish and Wildlife Service, and occasionally even against the National Marine Fisheries Service, though NMFS was mentioned sparingly during the hearing.

I felt as if I had seen this show before.  That’s probably because I had, and I’ll ferret out the links to those long-ago hearings as quickly as you can say “Google me,” or perhaps “GPO me,” the meaning of which I’d rather not speculate on right now. GPO’s website contains a trove of transcripts, so I have no doubt I’ll find corroborating evidence that this subject has been explored at length — even, as the lawyers might say, ad nauseam.

In the meantime, there’s a hearing to cover. If you want to watch it, click on the Twitter image below. Our preview of the hearing, which includes a link to attorney fee data obtained by the committee in May, is here.

Also, the obligatory Twitter link. (Incidentally, I think 140 characters is a bit parsimonious. 160 would be just about right.)

Hastings called attorneys for conservation groups “an army of environmental lawyers” who are diverting attention and funding from species recovery.

“Over $21 million has been paid out in attorney fees in recent years,” Hastings said, adding that ”two lawyers received more than $2 million each.”

The chairman of the committee mentioned the Center for Biological Diversity and Wild Earth Guardians by name, alleging that the latter organization received 34 percent of its revenue from attorney fees in 2010.

Apparently it does “pay to play,” he said.

[Addition: The Center disputed Hastings' numbers. CBD's full statement is pasted below, but the gist is this: Instead of more than $2 million, the Center in fact collected $553,000 in 2009, or "about 3.6 percent of the total attorney fees paid out by the government on Endangered Species Act cases, according to the Justice Department figures." CBD called on Hastings to correct the information. Hastings swiftly responded, ]

In his response, Rep. Edward Markey (D-Mass.) defended the practice of using citizen suits to hold the government accountable. But he began by attacking House Republicans.

“Today, on the House floor, Republicans are pursuing their great American giveaway: two omnibus bills would hand out millions of acres of land to oil and gas companies, hand-pick old-growth forests for logging interests and trample on the rights of Americans working, living of traveling within 100 miles of our borders.”

“They’re attacking the ability of citizens to bring suits against the federal government when it fails to follow the law.”

Markey delivered a riposte to the committee’s May analysis, which found $13 million had been spent on fees in ESA cases since 2009. Last year, Republicans proposed cutting the endangered species program by $72 million.

Markey said the cost of losing ESA cases represents two-tenths of 1 percent of all fees paid ($8.7 billion) from the Treasury Department’s Judgment Fund since 2009.

In 2006, the Bush Administration paid out $18.7 million in one telecommunications case lost by the government, Markey said.

Markey noted that funds coming from the Judgment Fund don’t count against the agencies’ own budgets.

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CBD statement

For Immediate Release, June 27, 2012

Contact:        Bill Snape, (202) 536-9351

Hastings Relies on False Information in Attacks on Endangered Species Cases

WASHINGTON, D.C.— The Center for Biological Diversity today called on Rep. Doc Hastings (R-Wash.) to correct false information about attorney fees collected in cases involving the Endangered Species Act. A June 19 statement posted on the House Natural Resources Committee’s website incorrectly claims that U.S. Department of Justice documents showed the Center had collected more than $2 million in attorney fees from fiscal year 2009 to present. In fact, the amount the Center received was $553,000 — about 3.6 percent of the total attorney fees paid out by the government on Endangered Species Act cases, according to the Justice Department figures.

In his latest attack on the Endangered Species Act, Hastings is trying to claim that environmental groups are getting rich from lawsuits designed to protect our most imperiled plants and animals from extinction.

“The government’s own figures simply don’t bear out the tired, debunked story that Representative Hastings is peddling,” said Bill Snape, senior counsel with the Center. “In this case, Hastings’ calculations are just plain wrong. If we’re going to have a real discussion about the best way to save endangered species, it has to be based on facts.”

Hastings, the chairman of the House Natural Resources Committee, requested attorney fees figures from the Department of Justice for Endangered Species Act cases from fiscal year 2009 to present. The Justice Department documents show 24 payments to the Center during those years, for a total of $552,897. The typical fee was less than $20,000, often for work on cases that stretched over several years. Many of the cases originated during the Bush administration, which the Interior Department’s own inspector general found was guilty of political interference in forcing science-based decisions to be overturned by Republican appointees.

Among the cases the Center worked on during that period:

A historic agreement to speed up protection decisions on 757 of the country’s most imperiled but least protected plants and animals;

• Restoring critical habitat protection for species that had it curtailed due to political meddling by the Bush administration;
• Winning a court order requiring the Fish and Wildlife Service to begin planning for the recovery of the jaguar, one of the most imperiled mammals in North America.

Importantly, the figures from Justice also show that industry groups collected a similar amount in attorney fees (about $550,000) during that same time period in lawsuits opposing Endangered Species Act protections.

“We go to court when the government fails to follow its own laws, meant to protect plants and animals from extinction,” Snape said. “When we prevail — that is, when a judge agrees the government must be held accountable — we’re eligible for attorney fees, at less than fair-market value. To inflate these numbers reeks of a cynical political ploy to gin up another misleading talking point. Unfortunately, it’s consistent with Chairman Hastings’ past rhetoric, which conveniently downplays the success of endangered species recovery efforts.”

The Center sent Hastings a letter today asking him to correct the errors on the House committee’s website.

Hastings’ response

DOJ Documents Confirm Center for Biological Diversity Received Millions in Taxpayer Funds from ESA-Related Lawsuits

WASHINGTON, D.C., June 27, 2012 - The Center for Biological Diversity today sent a letter to House Natural Resources Committee Chairman Doc Hastings claiming their organization had only received $553,000 in taxpayer funds resulting from Endangered Species Act (ESA) related attorney fees and court cases. This claim conflicts with data obtained from the Department of Justice (DOJ), which shows over $2 million in taxpayer dollars have been paid out to the Center for Biological Diversity and their attorneys for cases open between 2009-2012.The Center for Biological Diversity appears to have derived their erroneous number by including only checks made out directly to the Center for Biological Diversity over a select period of years. Attorney fees are typically paid out to the attorney of record. The Center for Biological Diversity is conveniently failing to include the majority of funds that were paid directly to their hired lawyers. Nine of the lawyers who have received payouts are currently employed by the Center for Biological Diversity.

“American taxpayers have a right to know how much of their money is going to pay attorneys and settlement costs for lawsuit-happy organizations that make a living off of suing the federal government. The numbers from the Justice Department speak for themselves,” said Chairman Hastings. “One frequent collector of taxpayer dollars spent a week inventing a way to misconstrue and hide data to make it appear as though they haven’t received millions in taxpayer dollars. The most direct way to have openness and transparency on exactly what funds a group has taken from taxpayers in ESA-related settlement and attorney fees is for them to publicly reveal all of their data for the past two decades.”

On March 19, 2012, Chairman Hastings sent a letter to the Environment and Natural Resources Division of the Department of Justice asking for detailed information on how much taxpayer money is being spent on ESA-related litigation and settlements. In response to this request, DOJ ran a search through their Case Management System (“CMS”) and provided the Committee information based on all cases where the ESA was one of the statutes at issue in the litigation.

According to this document from the DOJ containing 276 pages of case information, the Center for Biological Diversity was involved in over 50 individual cases, open between 2009 and 2012, where they were the lead plaintiff. The amount of attorney fees and court costs associated with these cases is $2,286,686.91. Of this amount, $138,114.45 was in court costs and $2,148,572.46 was in attorney fees.

These five examples alone of court cases filed by the Center for Biological Diversity where CBD received attorney fee payments between 2009-2012 far exceeds the $553,00 that the Center for Biological Diversity claims to have received:

• Center for Biological Diversity v. Environmental Protection Agency, et. al. in California; paid $172,000 on November 22, 2010 to attorney for CBD Justin Augustine.
• Center for Biological Diversity et. al., v. U.S. Army Corps of Engineers in Montana; paid $165,000 on March 23, 2009 to attorney for CBD Geoff Hickox.
• Center for Biological Diversity et. al., v. Kempthorne in Arizona; paid $159,044 on February 9, 2012 to attorney for CBD Melanie Kay.
• Center for Biological Diversity v. U.S. Fish and Wildlife Service in Arizona; paid $95,000 on April 23, 2010 to attorney for CBD Geoff Hickox.
• Center for Biological Diversity et. al., v. Kempthorne in Arizona; paid $51,866 on August 13, 2009 to attorney for CBD John T. Buse.

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Contact: Jill Strait, Spencer Pederson or Crystal Feldman 202-226-9019