November 11, 2013

PLF levels the field against frivolous federal litigation positions

By Anthony L. Francois Senior Attorney

Recently, the House of Representatives Natural Resources Committee, Subcommittee on Public Lands and Environmental Regulation held an interesting hearing on “Threats, Intimidation and Bullying by Federal Land Management Agencies.”  The witnesses, most of them cattle ranchers from Western states, poignantly summarized the legal and regulatory harassment to which federal bureaucrats have subjected them, typically in retaliation for exercising their rights as American citizens.

A common thread was that when they ultimately prevailed in court against the government, they were denied any award of attorney fees under the Equal Access to Justice Act (EAJA), a federal statute that is intended to level the field in litigation with the federal government.  Tim Lowry explained that the Department of Interior and its attorneys from the Justice Department had forced him to litigate his water rights claims for stockwater in Idaho all the way to the state supreme court, despite the fact that the federal objections were essentially frivolous.  Hundreds of thousands of dollars in attorney fees later, Mr. Lowry emerged victorious, but could not persuade the Idaho Supreme Court to award him his attorney fees against the federal government under the Equal Access to Justice Act for defending against their meritless objections.

In this context, one of the witnesses noted the asymmetry of the EAJA when it comes to environmental organizations routinely being awarded significant fee awards for their litigation against federal agencies, while private citizens who have to defend against overreaching bureaucrats are rarely made whole.  At that point, progressive California Congressman Jared Huffman (D- San Rafael) jumped in:

If we want to look at habitual litigation and that problem, I sure hope that scrutiny includes groups like the Pacific Legal Foundation, Cause of Action, the Competitive Enterprise Institute who I see ever present in these proceedings who simply troll around looking for opportunities to bring property rights cases against the government, often unsuccessfully. And we could certainly take a good hard look at some of the frivolous litigation that is constantly being asserted in the name of property rights.

Where to begin.  Pacific Legal Foundation is proud of its seven consecutive victories at the United States Supreme Court, and numerous victories in state courts and lower federal courts, in defense of private property rights, a balanced approach to environmental regulation, and equal treatment for all regardless of race.

It is easy to characterize property rights litigation as frivolous if you don’t have a strong attachment to property rights as a cornerstone of liberty.  But environmental activists and their legislative allies (including Mr. Huffman, a former NRDC attorney) also recognize the conflict between aggressive environmental regulation and property rights.  We stand for the rule of law and the constitution when we insist that environmental enforcement be subject to applicable constitutional, statutory, and regulatory limits.  If that is frivolous, it’s news to us.

Another point might be lost behind Mr. Huffman’s swipe at freedom-oriented legal groups.  His comment responded to a lament from several private citizens that the cost of litigation gives the federal government an automatic and unjust advantage.  PLF isn’t a troll chasing ambulances for quickie settlements.  We stand ready, and are called on daily, to level the playing field against federal bureaucracy, by representing private citizens without charge for attorney fees, so that they can stand up to the regulators who impinge on their property and other constitutional rights.  We are not the problem – we are the solution.

What to read next