Americans have a pretty keen sense of justice. For example, most people would agree that the ability to protect your rights shouldn't be limited to the wealthy. We even have a federal law allowing people to recover their legal expenses after they sue the government and win. The purpose of that Equal Access to Justice Act is to level the playing field - to make sure the immense power and wealth of the federal government doesn't prevent people from having their day in court.
But if it's justice we want, Congress ought to tweak that act.
As our article detailed, the Lolo National Forest spent more than
$1 million in recent years on a proposal to use salvaged timber harvested in the wake of the fires of 2000 to help pay for extensive forest restoration. The proposal called for logging 4,600 out of a total of 74,000 acres burned in 2000. The high cost of trying to launch the project is largely attributable to the extensive planning and detailed environmental analysis required to justify and defend any significant Forest Service undertaking.
To make the long story short, the project didn't get far. The Sierra Club and Alliance for the Wild Rockies stole the momentum with a lawsuit objecting to harvesting trees in unroaded patches, and a subsequent lawsuit by a group now known as the WildWest Institute brought the whole thing to a halt. Based on the Equal Access to Justice Act, the Forest Service agreed to pay $75,000 in legal fees to the first two groups and is negotiating over the latter's demand for $110,660 in legal fees. The money will rob from funds the agency could better use managing the forests.
This is nothing unusual. That's the problem.
The complexity of public land management creates endless opportunities for disagreement. These issues are, fundamentally, political in nature. That is, they're judgment calls. However, public land management is regulated by stringent laws and administrative rules. These create myriad technicalities on which to challenge decisions, not to mention the fact that every single judgment call must be more than reasonable - each and every one must also is subject to being proved correct in court. Ironically, the high cost of preparing and defending government projects diverts money that ought to go to land stewardship, and the fact it doesn't makes it all the easier to find fault in court.
The standard for the government is high, and that's good. We have high expectations of the government. But we shouldn't make it so hard for the government - and let's remember, we're talking about “We, the people” - to do its job. If people don't like the direction land management takes, the best remedy is through the voting booth.
As long as we demand legally defensible perfection in land management, we hardly need to be so generous in paying the attorney fees of the people who've created an industry of finding imperfections. It's just not that hard to do under existing laws and regulations. The ability to recover legal costs makes it easy and - at the risk of sounding cynical here - too tempting to sue over matters that really ought to be decided through public debate.
As it is, the public pays three times. It pays the Forest Service's cost of trying to manage the forests - including the substantial costs of trying to litigation-proof every significant action; it pays the costs of defending those decisions plus the reimbursement of the plaintiff's legal fees; and then it also pays the hard-to-quantify but never insignificant costs of the work not done.
We're not suggesting the Equal Access to Justice Act be scrapped. The concept is fine. But the trigger for recovering attorney fees ought to be higher. The current law says the government (taxpayers) must pay attorney fees unless the government proves its actions were “substantially justified.” Perhaps we should change that to award fees in cases of malfeasance. It just seems an injustice to make taxpayers pay for the good-faith efforts of land managers attempting to follow the direction given by duly elected representatives of the public, and then make them pay more when those good-faith efforts prove imperfect.
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