Legislative obfuscation and its impact on wild horse litigation

That’s not the title of the article published online by The Horse written by horse loving lawyer Milt Toby. Toby calls it simply “Legislative Obfuscation”. A bit puzzled I thought, what does this have to do with horses.

First of all, if you are wondering, the definition of obfuscate is “To make so confused or opaque as to be difficult to perceive or understand.” So, I was immediately relieved he was not talking about the American Horse Slaughter Prevention Act of 2011, just introduced in the Senate last week.

Secondly, if you are wondering what this has to do with horses, here it is.

Toby decided to dig into a piece of legislation called the “Government Litigation Savings Act” (HR 1996 and S 1061). As Toby states, the title gives little clue as to what the bill is really about.

Read on.

It turns out that the “litigation savings” in H.R.1996 and S.1061 are realized through amendments to the Equal Access to Justice Act (“EAJA”) that will make it much more difficult for advocacy groups to sue the federal government for failures to follow the law. The EAJA was adopted by Congress during the 1980s to make it possible for individuals and advocacy groups to enforce federal law by filing lawsuits against the agencies responsible for upholding those laws. Legal action against the government is very expensive, and the EAJA authorized the reimbursement of attorney fees for successful litigation against the feds.

(emphasis added)

Here comes the kicker, and Toby’s example of what sort of impact this bill could have, if passed, should send a few shivers.

Think wild horses and the Bureau of Land Management. When the BLM makes a mess of things, which seems to happen with some regularity, a spate of lawsuits follows. An animal welfare group almost always is involved, either as a named plaintiff or in a supporting role, and the possibility of recovering the costs of litigation often is a factor in deciding whether to sue. The Government Litigation Savings Act may not kill all of these public interest lawsuits, but it will limit them in two important ways:

First, the legislation would limit recovery of attorney fees to a plaintiff that wins the lawsuit and also “has a direct and personal monetary interest in the civil action, including because of personal injury, property damage, or unpaid agency disbursement.” This restriction rules out recovery by an organization objecting to some government action (or inaction) strictly on a public policy basis. Many wild horse advocacy groups likely would be affected by this restriction.

Second, the fee that can be awarded to a successful plaintiff is capped at $200,000 for a single lawsuit, or for more than three lawsuits filed in the same year. That might sound like a lot of money, but it’s a drop in the proverbial bucket when it comes to suing the government.

The bottom line from Toby is this. The legislation will make it much more difficult to rein in the BLM through court action.

Oh, by the way, it was legislators from Wyoming who introduced the measures. What is it with the legislators of Wyoming?

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