Commentary

Setting the record straight about citizens’ rights

November 20, 2021 5:38 am

Stacks of cut timber are ready for processing at Willis Enterprises, a wood chipping plant, at the Bonner Industrial Park September 20, 2019 in Bonner, Montana. As timber mills have closed or reduced volume all over the state, other businesses have evolved and developed in Montana. Once the industrial and economic center of the Missoula area, the Stimson Lumber Mill in Bonner closed in 2008 after 122 years of continuous lumber production, throwing hundreds of people out of work. Today, the 200 acre site that once produced millions of board-feet of plywood and other lumber products is now home to a pedicab manufacturer, a Bitcoin mining facility, a custom aluminum trailer manufacturing facility, a beer brewery, a concert amphitheater and a dozen other businesses. (Photo by Chip Somodevilla/Getty Images)

Politicians like Sen. Steve Daines and Gov. Greg Gianforte have erroneously claimed that the Alliance for the Wild Rockies gets rich off the Equal Access to Justice Act for working to keep Montana, “high, wide and handsome.” It appears they either don’t understand how this federal law works or are intentionally misleading the public.

Montanans deserve the truth.

Our Constitution’s First Amendment not only guarantees freedom of speech but also guarantees citizens the right to sue the federal government for very good reasons. If someone throws a brick through a window, the police enforce the law. But when the federal government breaks the law, citizens are often the only “enforcers,” and they have to hire attorneys to represent them in court.

When logging proposals fail to protect our land, water quality, and native wildlife as required by law, the Alliance for the Wild Rockies goes to court to force the federal agencies to follow the law. And because the Forest Service is a serial lawbreaker and our claims are valid, we win those court challenges about 80 percent of the time.

When we prevail, only the legal fees of the attorneys who represent us get paid. The Alliance has no staff attorneys, and hence, does not get a penny. In addition, before we can challenge the Forest Service in court, we have to comment on the proposed project and file an administrative objection, bringing the issues we have to the Forest Service’s attention when there’s still time for the agency to correct course. The Alliance does not get reimbursed for any of the work we do to try to get the Forest Service to follow the law before they make final decisions implementing bad projects – those costs are paid for by our members.

If successful plaintiffs could not recover attorneys’ fees, the government could just drive litigation costs sky high to bankrupt citizens who bring forth valid grievances. The simple truth is that the vast majority of the Equal Access to Justice Act pay-outs go to Social Security disability and veterans’ disability claims – such as those who cannot get treatment for health problems caused by exposure to Agent Orange in Vietnam. Likewise, if you sue the federal government because it made a mistake on your social security check or the IRS made a mistake on your taxes, your legal costs are compensated by the Equal Access to Justice Act – but only if your complaints are valid and you win in court.

Before Gianforte and Daines get too excited about getting rid of the EAJA, perhaps they would benefit from looking into the very long history of attorney fee laws. These laws allow citizens, as the federal Ninth Circuit Court of Appeals famously wrote, to “stand in the shoes” of regulatory enforcement agencies to enforce the law — and to do so without any prospect of personal benefit.

If our politicians are really concerned about wasting taxpayers’ money, curtailing the Forest Service’s money-losing logging projects would be a good start. For example, the Forest Service estimates that it will lose $3.184 million on the proposed South Plateau logging project, which would clearcut 8.6 square miles on the border of Yellowstone National Park. The recently passed federal infrastructure bill and the new budget reconciliation bill add another $14 billion on top of the billions the agency already gets to subsidize logging.

Wildfire prevention is often given as one of the agency’s justifications for massive clearcutting under the twisted logic that if the trees are gone there won’t be a fire. But this is demonstrably false since most of the nation’s largest wildfires have burned through thinned areas and clearcuts. Fires have even jumped the mile-wide Columbia River in Oregon – and there are no trees in the river. On the other hand, research studies have shown that logging has little beneficial effect on wildfire spread and can actually increase fire severity.

It’s time to put aside the myths that the Alliance for the Wild Rockies makes money off lawsuits – as well as the politically-convenient hoax that logging prevents wildfires. Ordinary Americans have a First Amendment constitutional right to challenge illegal government actions, and rest assured the Alliance for the Wild Rockies will continue to do just that. If politicians are tired of attorneys getting legal fees for successfully suing the Forest Service for breaking environmental laws then there is a simple way to stop these lawsuits. Demand that the Forest Service quit breaking the law.

Until then, if you think it’s a good idea for citizens to hold the federal government accountable to environmental laws, please consider making a donation to the Alliance for the Wild Rockies, and to the Daily Montanan for all the great work they do exercising their First Amendment rights.

Mike Garrity is the executive director for the Alliance for the Wild Rockies.

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Mike Garrity
Mike Garrity

Mike Garrity is the executive director for the Alliance for the Wild Rockies.

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