Environment, Inc -Part Three

Litigation central: A flood of costly lawsuits raises questions about motive

(Third of five parts)

By Tom Knudson
Bee Staff Writer
(Published April 24, 2001)

No one knows the Sacramento splittail better than Peter Moyle.

For 20 years, Moyle, a professor of fisheries biology at the University of California, Davis, has struggled to protect the silvery fish that lives in the Sacramento-San Joaquin River Delta. He even helped prepare a petition requesting that the U.S. Fish and Wildlife Service list the fish under the Endangered Species Act in 1992.

But when the Southwest Center for Biological Diversity sued the wildlife service in 1998 to force a ruling on the petition, Moyle wasn't pleased.

The reason? By then, three wet winters had touched off a splittail population explosion. What's more, a multibillion-dollar habitat restoration plan for the Delta, called Cal-Fed, was brightening the fish's future.

"I was sorry to see it," Moyle said of the suit. "Things were getting better."

When Moyle later learned that the center's law firm had been awarded $13,714 in public money for a court victory that led to the fish being listed as "threatened," he was shocked.

Suing the government has long been a favorite tactic of the environmental movement -- used to score key victories for clean air, water and endangered species. But today, many court cases are yielding an uncertain bounty for the land and sowing doubt even among the faithful.

"We've filed our share of lawsuits and I'm proud of a lot of them," said Dan Taylor, executive director of the California chapter of the National Audubon Society. "But I do think litigation is overused. In many cases, it's hard to identify what the strategic goal is, unless it is to significantly reshape society."

The suits are having a powerful impact on federal agencies. They are forcing some government biologists to spend more time on legal chores than on conservation work. As a result, species in need of critical care are being ignored. And frustration and anger are on the rise.

"It's all about power and the trophy," said Kay Goode, assistant field supervisor for endangered species at the U.S. Fish and Wildlife Service in Sacramento, which has been sued so often that employees call it "litigation central."

"We can't continue at this pace," Goode said.

The crush of cases is prompting some lawyers and government officials to speculate that the suits could be motivated, at least in part, by money. Under federal law, an attorney who wins an environmental "citizen suit" against the government is entitled to an award of taxpayer-funded attorney fees.

"I worry that the propensity to sue the (fish and wildlife) service every time it misses a deadline sets our community up for an easy assault on the availability of fees," said Michael Bean, a senior attorney for Environmental Defense, one of the nation's largest conservation groups.

The Southwest Center's lawyers say money is not a factor for them.

"We file a lot of cases, but the point is not to generate income; it is to win and spur change," said James Tutchton, lead lawyer on the splittail case, which was filed in conjunction with the Sierra Club. "People don't like the fact that we represent unpopular groups and species and win."

There is no central repository for environmental lawsuits. But information obtained by The Bee from the Department of Justice using the U.S. Freedom of Information Act and from federal courthouses around the nation shows that:

* During the 1990s, the government paid out $31.6 million in attorney fees for 434 environmental cases brought against federal agencies. The average award per case was more than $70,000. One long-running lawsuit in Texas involving an endangered salamander netted lawyers for the Sierra Club and other plaintiffs more than $3.5 million in taxpayer funds.

* Attorneys for environmental groups are not shy about asking for money. They earn $150 to $350 an hour, and sometimes they get accused of trying to gouge the government. In 1993, three judges on the U.S. Circuit Court of Appeals in Washington were so appalled by one Sierra Club Legal Defense Fund lawyer's "flagrant over-billing" that they reduced her award to zero. "Even a perfunctory examination of (the lawyer's) time entries would show that she billed on a Brobdingnabian scale," wrote the judges, referring to the giants in "Gulliver's Travels" to drive their point home.

* Lawyers for industry and natural resource users get paid for winning environmental cases, too. When California water districts won a follow-up suit over the splittail last year, their law firms submitted a bill for $546,403.70 to the government. The Justice Department was stunned.

"Plaintiffs have failed to exercise any billing discretion," wrote U.S. Attorney Matthew Love in a January brief. "They seek compensation for excessive, duplicative and redundant tasks ... charge their normal hourly rates for (routine) activities such as telephone calls, letter writing (and) review of files."

* Since 1995, most cases brought have not been about dams, nuclear power or pesticides, but about rare and endangered species. That flood of suits has turned judges into modern day Noahs who decide which species are saved -- and which aren't. But the judges -- guided by law, not science -- aren't always the best-equipped to make biologically correct decisions.

* Suing on behalf of species is a specialty niche. Four law firms filed more than half of all such suits from 1995 to 2000. A whopping 75 percent of those cases were lodged in six states: California, Arizona, Oregon, New Mexico, Texas and Colorado. One kind of case -- over "critical habitat" -- has so swamped the Fish and Wildlife Service that it has halted the biological evaluations necessary to add new species to the federal endangered species list.

* Lawyers don't just bill for legal work. They also submit claims for lobbying, talking to the news media and flying and driving to and from meetings and courthouses.

"This has become a cottage industry," said Elizabeth Megginson, former chief counsel for the U.S. House Committee on Resources. "And it is being paid for by you and me, by taxpayers.

"Lawsuits are filed not so much to benefit species but for other reasons," said Megginson, who investigated dozens of cases for the committee. "It certainly is a way of supporting lawsuits that might not be filed if (environmental groups) had to pay their own way."

Citizen suits came into prominence three decades ago when Congress passed sweeping environmental laws, including the Endangered Species Act and the Clean Water Act. Realizing that political pressure could deter federal agencies from enforcing the law, Congress granted environmental groups and ordinary citizens the right to hold the government accountable in court.

Since then, citizen suits have played an essential role in cleaning up and restoring the American landscape. A 1988 endangered-species suit by the Natural Resources Defense Council forced the U.S. Bureau of Reclamation to restore water to the San Joaquin River, bringing a ghost stream back to life. Another citizen suit led to the listing of the northern spotted owl as a federally "threatened" species, dramatically curtailing logging in the Pacific Northwest.

But like strong medicine, the power of the law works both ways. Used strategically, it can work miracles. Used otherwise, it can generate powerful side effects, even hurt what it is meant to help.

"Lawyers can be like engineers," said Gregory Thomas, chief executive officer of the Natural Heritage Institute, an environmental law and mediation group in Berkeley. "The engineering mentality says that if something can be built, it should be built. The legal mentality tends to be that if a case can be brought, it should be brought.

"But we know, from both engineering and lawyering, that that leads to socially undesirable results. It leads to dams that ought not be built. And it leads to lawsuits that ought not be brought."

On April 15, 1998, when millions of Americans were filing their taxes, the Southwest Center for Biological Diversity was filing a lawsuit to protect Alaska's Queen Charlotte goshawk. Six weeks later, the center's legal team was in California to sue over the Sacramento splittail. Then came another California case concerning 39 species, from the Pacific pocket mouse to the California gnatcatcher.

No environmental group in America files more endangered species cases at a more frenetic pace than the Southwest Center, which has since dropped the "Southwest" from its name to reflect its expansion into California and Oregon. Public records show that from 1994 to 1999 alone, the Center for Biological Diversity and its lawyers filed 58 lawsuits, an average of one every 32 days.

"We're panicked," said Kieran Suckling, the center's executive director. "There are species going down before our eyes."

But most of the suits don't hinge on the science of endangered species -- they're based on statutory deadlines. When Congress passed the Endangered Species Act in 1973, lawmakers filled it with deadlines to force bureaucrats to make timely decisions. When the Fish and Wildlife Service fails to meet those deadlines, which is often, it can be sued.

Missed deadline suits can be sweeping in scope. When the service failed to make timely decisions on 44 rare California plants proposed for the endangered list, the center sued on all 44 -- and won.

To date, the center has succeeded in adding 87 species in California to the federal endangered list.

"What we have accomplished is huge and real," Suckling said. "If citizens were not able to file these suits, the law would be meaningless. Politics would rule. And politics is always against endangered species."

Other environmentalists question the wisdom of such an approach.

"A missed-deadline case is like shooting fish in a barrel," said Thomas at the Natural Heritage Institute. "Anybody can bring such a case. Anybody can win such a case. The question is, having won it, have you advanced a broader strategic solution?"

Frequently, the answer is no, said Bean, of Environmental Defense, one of the country's most experienced endangered species attorneys.

"The reality is listing often doesn't do a whole lot to improve the status of these species," Bean said. "Nine percent of listed species are improving. Thirty to 35 percent are declining. It won't do a lot of good to list species if they continue to decline -- and we ultimately lose them."

But it's not missed-deadline cases that are stirring up the most conflict. It's another category of lawsuit that seeks to secure "critical habitat" for species listed as federally threatened or endangered. Critical habitat is defined as habitat essential to the survival and recovery of a species.

Such suits generate playful headlines. Consider one recent case involving the California red-legged frog, a federally threatened species.

"Threatened Frogs May Get Leg Up," the Hartford Courant wrote after federal biologists last year -- in response to a center suit -- proposed to designate one-twentieth of California, 5.4 million acres, as critical habitat for the frog. The Engineering News-Record -- a trade journal -- hopped on the story. "Builders Jumpy Over Frog Limits," it reported.

Federal officials say the case was actually a leap backward for conservation.

"Critical habitat does not add a lot of value and -- in many cases -- almost no value to the conservation of species," said Michael Spear, head of the California-Nevada office of the Fish and Wildlife Service. "We will cover a significant part of California, one way or the other, with critical habitat this year."

But to Suckling, critical habitat has a near-magical power: to halt development, logging and other activity on land not occupied by endangered species but "critical" to their recovery. The idea is that species could eventually re-colonize such areas, or at least pass through them during migration.

Work stoppages are already happening in Arizona, where the designation of 790,000 acres of critical habitat for the cactus ferruginous pygmy owl, spurred by a center suit, has brought sprawl to a crawl around Tucson.

And what the owl has done for Tucson, the red-legged frog will do for California, only more so, Suckling said.

"Ten years from now, when tens of millions of acres of critical habitat will have been in existence across the West, there will be an enormous increase in species recovery and habitat restoration," he said in an e-mail. "The money spent on its designation will be seen as a bargain. It is a heck of a lot cheaper than keeping species in the emergency room for the rest of eternity."

The most massive critical habitat allotment of all came earlier this year when the Fish and Wildlife Service, again prodded by a center suit, designated 39,000 square miles of Alaska as critical for the spectacled eider, a sea duck.

"You know what is so important about the spectacled eider?" Suckling said. "That designation will be the only thing standing between George Bush and the oil rigs."

But such cases may be backfiring. In January, then-wildlife service director Jamie Rappaport Clark placed a moratorium on additions to the endangered list, saying the agency's resources are being gobbled up by critical habitat litigation.

"Critical habitat has turned our priorities upside-down," Clark said. "Species that are in need of protection are having to be ignored. This is a biological disaster."

Clark also voiced concern about the tax dollars that flow to environmental lawyers who win critical habitat, missed deadline and other cases. "I guess it's pretty good employment," she said.

Like other Fish and Wildlife officials, Clark has no direct role in negotiating attorney fees. That is handled by the Justice Department and, when talks break down, federal judges. The money comes not out of the Fish and Wildlife budget, but from a special "Judgment Fund" that pays claims of all kinds against the government.

So the size of the awards was news to Clark. Informed that some climb to $100,000 or more, she reacted angrily. "I guess they (lawyers) dress pretty well," she said. "I believe citizens should have the opportunity to sue the government, but this has gone over the edge."

William Curtiss, a vice president with the Earthjustice Legal Defense Fund -- the nation's largest nonprofit environmental law firm -- said public anger should be directed at government officials for breaking the law and for prolonging cases in court.

"It's hypocritical for the government to drag these things out for years, make the plaintiff jump through every hoop and hurdle, then turn around and whine about how much it costs," Curtiss said. "I don't buy it."

Few firms win larger fee awards than San Francisco-based Earthjustice, formerly the Sierra Club Legal Defense Fund. When Earthjustice won a coho salmon suit recently, for example, it submitted a bill for $439,053 to the Justice Department, and settled for $383,840. Most of the invoice was for 931 hours of legal work by Earthjustice senior attorney Michael Sherwood -- at $350 an hour.

Curtiss said $350 is a reasonable hourly fee for an experienced San Francisco attorney and Sherwood is the firm's most experienced.

Other lawyers, though, say the rate is high. "Nobody I'm aware of charges $350 an hour on our side," said Gregory Wilkinson, an attorney who represents irrigation and water districts. Wilkinson's rate is $225 to $250 per hour.

Earthjustice President Vawter "Buck" Parker said that unlike trial lawyers, his firm's lawyers have no incentive to win big awards.

"When we win fees, they go into a common pot for the general support of the whole organization," Parker said. "No one sees a change in their salary. No one sees their office budget go up ... on account of it."

One big controversy unfolded outside of public view in 1994 when a Sierra Club lawyer and other attorneys asked for $5 million, the largest fee request of the decade, as a partial settlement for winning an endangered species suit in Texas.

"The claim is excessive by any standard of fairness or reasonableness," U.S. attorneys wrote in protest to a federal judge.

The judge put the billing documents under seal. But, obtained by The Bee, they show that U.S. Attorney Charles Shockey was so irritated that he did not limit himself to dry legalese. He titled one legal motion:


The Justice Department and plaintiffs' lawyers settled the partial claim for $2 million. But the lawsuit eventually cost the government an additional $1.5 million, federal records show, ranking it first among fee awards in the 1990s.

Fee disputes are fairly common. Lawyers for the Environmental Defense Center in Santa Barbara asked for $123,462.53 in a 1996 Endangered Species Act case that led to the listing of the red-legged frog as "threatened." U.S. District Judge Manuel Real balked. He cut the award to $44,511, calling the billable hours "overstated."

The original frog invoice included charges for time spent talking to the news media, traveling, even adding up the legal bill itself.

"Hours spent are grossly unreasonable ... given the straightforward, simple unchanging nature of the case," Justice Department lawyers argued in papers filed with Real.

The 1993 suit that infuriated the Washington. D.C. circuit judges involved a Clean Air Act case filed by the Environmental Defense Fund against the Environmental Protection Agency.

In the case, the judges wrote that the Defense Fund's attorney Kirsten Engel "claimed to have spent 73.45 hours -- nearly two work weeks -- preparing two letters to the EPA about EDF's request for attorney fees.

"We are compelled to conclude that Engel submitted outrageously excessive time entries ... Therefore, we award the petitioner none of the $17,773.50 it asks for Engel's work," the judges said in their decision.

"We regard over-billing the government as a serious transgression, damaging to the public and violative of the trust reposed in each member of the bar," the judges concluded.

Occasionally environmental lawsuits cause other damage -- to the very groups that file them.

One such case unraveled in Arizona recently when the Southwest Center sued the U.S. Forest Service, alleging that it failed to "consult" with the Fish and Wildlife Service about cattle grazing's effect on endangered species -- a violation of federal law.

The suit targeted large swaths of federal land leased to ranchers, including a lease held by Joe and Valer Austin, owners of the picturesque El Coronado Ranch in the Chiricahau mountains.

The Austins are no ordinary husband-and-wife ranch team.

Since buying El Coronado in 1984, they have invested more than $1 million to return it to ecological health. They have constructed 20,000 erosion control structures, cut back herds dramatically and reduced the seasons they graze, and worked to restore threatened and endangered species. They have welcomed university and government scientists to the ranch to observe their efforts.

Their work has earned them numerous awards, including the Joseph Wood Krutch Award from The Nature Conservancy in 1996 and, two years later, the W.R. Chapline Land Stewardship Award from the Society for Range Management.

That didn't satisfy the Southwest Center, which alleged in its 1998 Forest Service suit that the Austins' ranching practices were harming endangered species.

"It was a real slap in the face," Joe Austin said.

Valer Austin added: "They just put us in the same bucket with everybody else. They didn't even come out here to see what we were doing."

The Austins didn't stand idly by. They jumped into the lawsuit with the federal government -- and emerged victorious. Senior U.S. District Judge Alfredo Marquez in Tucson ruled that the suit had been brought in bad faith and ordered the center to pay the Austins' $56,909 legal bill.

Still, Joe Austin feels conservation has suffered a defeat.

"Everything we were trying to do to convince other ranchers and landowners that endangered species are not a liability has been lost," he said. "The Southwest Center proved me wrong. The Southwest Center proved to everybody that having an endangered species is a liability.

"In fact, many people think you should just get rid of them," Austin said. "That is the exact thing I didn't want to happen."

What's the center's view? "It's a bummer," said Suckling. "I wish it had not come down this way. But would I sue again? Absolutely. (The Austins) are having an impact on public land. The fact that they are doing good things elsewhere doesn't excuse it."


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