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Summary Judgment

The UnEqual Access To Justice Act

Dec 01, 2009 | by William Perry Pendley

John Shuler of Dupuyer, Montana, who raises sheep for a living, was nearly killed one night when he was attacked by a grizzly bear. Fortunately, he had his powerful rifle with him and was able to mortally wound the bear and save his own life. Unfortunately, the U.S. Fish and Wildlife Service (FWS) and its lawyers charged him with violating the Endangered Species Act (ESA) because grizzly bears are classified as threatened under that law. The FWS did so even though there is a self-defense provision in the ESA.

At first, the FWS argued that John Shuler had not been in fear of death or serious bodily injury by the grizzly bear; however, an administrative law judge (ALJ) ruled otherwise. Then, the FWS argued that John Shuler had been at fault because, knowing that grizzly bears were outside, he had left his house and entered into the zone of imminent danger. That argument was rejected by a federal agency appeals board. At that point, the FWS argued that John Shuler was at fault because he had taken his dog Boone with him and, upon seeing the bear, Boone had gone on point, provoked the bear, and escalated the conflict. That argument was rejected too. Finally, the FWS argued that grizzly bears are entitled to a higher standard of self-defense than human beings because they are incapable of sapient thought. At last, a Montana federal district court rejected all that and ruled that John Shuler, in killing a federally protected species, had acted in self-defense.

That was the good news for John and Carmen Shuler, who had faced a $5,000 fine. The bad news was that the victory had taken eight years and the public interest law firm that defended John Shuler had expended $225,000 in legal fees and expenses. Fortunately, there is the Equal Access to Justice Act (EAJA), which provides that citizens who sue the federal government and win are entitled to reimbursement of attorneys' fees and expenses.

John Shuler's attorneys were confident of an EAJA award; after all, the statutory requirements for an award (other than bars on awards to the very wealthy) are only that the private citizen win in court and the government's position not be substantially justified. Incredibly, the district court ruled against John Shuler's claim, holding that the United States was justified. On appeal to the U.S. Court of Appeals for the Ninth Circuit, John Shuler's lawyers argued that, while the United States may have been justified in seeking to determine how the grizzly bear was killed, the United States was not justified in arguing that: Shuler could not go outside with his gun; his dog could not go outside with him; or that grizzly bears are due a higher standard of self-defense. The Ninth Circuit rejected those arguments.

All this is relevant given recent concerns about the size and amount of EAJA awards to environmental groups. One study noted that, in cases involving the U.S. Forest Service from 2003 to 2005, 35 of the 44 EAJA awards made were to environmental groups. Specifically, in Idaho federal district court over the past decade, one environmental group received nearly one million dollars in attorneys' fees and expenses. In some cases, the environmental groups did not win; instead, the United States settled the lawsuits. Many believe the federal government and federal courts are too willing to make EAJA awards to environmental groups. Earlier this year, for example, Attorney General Eric Holder settled a lawsuit and paid $19,222 to three environmental groups that did little more than file a complaint!

The issue of bias in EAJA awards may soon get more attention. A California miner who defeated attempts by the U.S. Forest Service to eject him from his valuable mining claim--in a case experts said was unwinnable--but was denied his claim for $207,207 for attorneys' fees and expenses, has filed an appeal in Washington, DC.

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