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Omaha, Neb. – “We’ve been working on the attorney’s fees reimbursement issue since 2009, and the idea that the federal government basically pays environmental groups to sue the federal government to stop our use of the land is still hard for me to understand eight years later,” said Cheyenne Attorney and Budd-Falen Law Offices LLC Co-Owner Karen Budd-Falen.

She discussed the current use of federal funds to reimburse attorney’s fees during the 2017 Range Rights and Resource Symposium on May 19-20.

Judgment Act

Budd-Falen explained there are two basic ways the federal government reimburses attorney’s fees, the Equal Access to Justice Act (EAJA) and the Judgment Act.

“The Judgment Act is an act that is simply funded by the government every year,” said Budd-Falen. “It’s not something that Congress renews. They just put money into this Judgment Fund.”

The Judgment Act applies to litigation under the Endangered Species Act, the Clean Water Act, the Clean Air Act, Resource Conservation Act and other similar statutes.

She continued, “It is a fee shifting statute that says ‘a prevailing party’ should have their attorney’s fees reimbursed by the federal government.”

According to Budd-Falen, the interpretation of a prevailing party by the court is the party that achieves their desired outcome.

Equal Access to Justice Act

“EAJA applies to cases brought under the National Environmental Policy Act (NEPA), Federal Land Policy and Management Act (FLPMA) or the National Forest Management Act,” said Budd-Falen.

According to the act, the prevailing party should have their attorney’s fees reimbursed.

“EAJA was actually signed by President Ronald Reagan because, what he saw and what Congress saw at that time was the federal government in some cases was taking positions against a private business or a private landowner, and he thought it was a way to equalize the playing field,” she explained.

Budd-Falen continued, “President Reagan said that, if we proved the government is wrong, unjustified in their position, didn’t have a legitimate legal position or was just trying to be a bully and push people around, if we win in court, we should have our attorney’s fees reimbursed.”

When the act was passed, the reimbursement cap was $125 per hour, which would be the equivalent of $200 per hour today, for attorney’s fees.

“They also were only going to pay EAJA funds to businesses or individuals whose net worth was less than $8 million,” she said.

Shift in use

According to Budd-Falen, the acts weren’t abused until 1995 when President Clinton signed the Paperwork Reduction Act.

“One of the pieces of paper they reduced was any accounting for the spending or reimbursement of litigation fees to these groups,” she said.

Prior to 1995, the Congressional Research Office filed an annual report that was released for public record, giving a detailed account of how much money was paid to each entity.

“Once that piece of paper was reduced, we saw massive increases in litigation,” she commented. “When we started studying the issue, I thought it was really interesting because the vast majority of attorney’s fees cases are settled by the federal government.”

Budd-Falen noted the amount of litigation by environmental or animal rights groups dramatically increases while under democratic administrations.

“I don’t think it’s because Republicans were better at following the law than the Democrats. I think it was because of the settlement of attorney’s fees,” she said.

Budd-Falen continued, “When we simply compare the raw numbers across administrations, significantly more fees were paid to these groups during Democrat administrations than during Republican administrations.”

Holes

Budd-Falen explained that loopholes have been created in the EAJA and Judgment Act funds.

The $8 million net worth cap now only applies to for-profit entities, said Budd-Falen.

“For non-profit public interests, net worth doesn’t matter,” commented Budd-Falen. “The Sierra Club Legal Foundation in 2013 was worth, by their IRS forms, $56 million. Sierra Club gets their attorney’s fees reimbursed.”

Another loophole Budd-Falen discussed was the attorney’s fees reimbursement amount cap.

“What these groups have done is, they’ve convinced the Justice Department that environmental law is a ‘specialty,’” said Budd-Falen.

She continued, “I have seen requests for attorney’s fees from Earth Justice Legal Foundation at $750 per hour, and those attorney’s fees have been paid by the federal government.”

According to EAJA, attorney’s fees are only to be paid if the federal government is not substantially justified in its position through either law or facts.

“In 21 percent of cases, there was no determination of whether the government was substantially justified in its position,” stated Budd-Falen. “Rather, a settlement is simply made with the environmental group, and their fees get paid.”

Needed changes

According to Budd-Falen, accounting of attorney’s fees is an important change that must be made.

“I think we have to have an accounting of the fees just so the American public knows how much money is being spent,” said Budd-Falen.

Changes also need to be pushed for and made to the EAJA, said Budd-Falen, noting “We also have to go further and push for some changes in the EAJA.”

“The idea that even if their net is over $8 million but they’re a ‘non-profit public interest’ and can get attorney’s fees anyway is absolutely ridiculous,” she commented.

She explained that trade organizations such as the Public Lands Council are ineligible for reimbursement as some organization members have individual net worth greater than $8 million.

“I think that has to stop. I think it’s got to be an equal play field for all of us,” said Budd-Falen.

A hard cap should also be enforced on reimbursement amount per hour, according to Budd-Falen.

“People shouldn’t be able to make an windfall on attorney’s fees just because they want to hire somebody who wants to work in a place like California,” she stressed.

Emilee Gibb is editor of Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Laramie — Under the sponsorship of State Representative Pete Illoway (R-Cheyenne), Wyoming may soon have an official Code of Ethics, specifically the “Code of the West.”
If met with approval at the upcoming session of the Wyoming Legislature, the Code will join the list of other items symbolic of Wyoming and noted in state statute — Indian paintbrush, the cottonwood tree and the meadowlark bird. Illoway agreed to carry legislation in support of the Code during a Jan. 22, 2010 gathering where a documentary film, “Code of the West,” premiered. Jim Havey directed the film with the guidance of author, speaker and Code of the West advocate Jim Owen who served as the film’s producer.
Owen is the founder and “Chief Inspiration Officer” of the Center for Cowboy Ethics and Leadership and the author of two books, “Cowboy Ethics: What Wall Street Can Learn from the Code of the West,” and “Cowboy Values: Recapturing What America Once Stood For.” Owen, who was in attendance and spoke at the Jan. 22 event, said he chose Wyoming for the Code of the West film because it’s an area where Cowboy Ethics are alive and well.
“His vision about the power of the Wyoming story,” said University of Wyoming School of Business Dean Brent Hathaway of Owen, “is why we’re here today.”
Wyoming Business Council CEO Bob Jensen said his agency welcomed the opportunity to join the effort to highlight Owen’s work and Wyoming businesses operating by the Code of the West. “The Business Council knows firsthand that the way business is done in Wyoming, unfortunately, doesn’t exist as much as it used to in the rest of America,” said Jensen. “We also know that many businesses outside of Wyoming are looking for place where they can do business like we do in Wyoming, by the Code of the West.”
Several individuals familiar to most Wyomingites appear throughout the film. Among them is the Shepperson family of Midwest. Four generations of the Shepperson family work together on their central Wyoming ranch. Frank Shepperson is president of the Wyoming Stock Growers Association and his daughter Lisa Shepperson is a rancher and a Wyoming State Representative.
“Is the Code of the West for real or is it something made up? Is it still alive?” said Owen of the questions he’s asked nearly every time he speaks to a group. “In my heart I think the last great place for the Code of the West is Wyoming.”
“Wyoming is different and special,” said Jim Havey, the film’s director. “I think that those of you who live here know that. This state is a unique entity in the country and in the minds and hearts of the people who live here.”
“This is one of the most satisfying things I’ve done,” said Owen of work on the documentary.
Wyoming’s business and education communities embraced Owen and Havey’s work to feature the state as a place where the Code of the West remains alive and well in everyday dealings. Among the films’ supporters was the University of Wyoming College of Business under the leadership of Hathaway. The college, which is home to the Bill Daniels Distinguished Professor of Business Ethics Richard McGinity, will oversee future distribution of the film.
“Clearly, our partnership with the Daniels Fund was the beginning,” said Hathaway during Friday night’s premier. “We had a dream and the dream was simple; to build a campus-wide initiative that would then become a statewide movement. That’s being reinforced for me personally here today.”
“I would love to see the country discover this thing,” said Owen. “I would love to see whatever profit is made, that we as a group reinvest it in the schools.”
The University of Wyoming College of Business has posted a link at http://business.uwyo.edu/dean/ for those individuals who would like to receive additional information regarding the film. Copies of the documentary aren’t yet available, but those who fill out the form will receive additional information as it’s released.
Information regarding Jim Owen and his work can be found online at www.cowboyethics.org. Freelance writer and Wyoming FFA Foundation Executive Director Jennifer Womack can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or 307-351-0730.

With the August recess in full swing and Congress in session for only eight days in September, Wyoming’s congressional delegation has mixed opinions on whether or not we will see a new five-year Farm Bill passed in 2012.
    With the Wyoming delegation spending their August recess visiting the state, all three members attended the Wyoming State Fair and various events associated with the celebration to let constituents know the status of things in Washington, D.C.
In the House
    Congresswoman Cynthia Lummis spoke to producers at the Cattlemen’s Conference on Aug. 15, sponsored by the Wyoming Livestock Roundup and Farm Credit Services of America, and said, “The House has passed a Farm Bill out of the House Ag Committee, but not through the whole House.”
    “There is still too much spending to satisfy the more conservative people in the House Republican conference,” she continued. “Instead, we passed a livestock drought disaster funding bill that is retroactive, so it counts for this year.”
    In the last Farm Bill, Lummis explained that all provisions were funded for five years, with the exception of livestock programs, which were only funded for four.
    “They expired last September,” Lummis explained. “That is why the House passed a one year extension of the livestock drought programs.”
    Lummis noted the programs include livestock predation and other livestock provisions.
    “The problem is, so many bills pass the House and won’t pass the Senate or vice versa – we are in that situation again,” she said. “I think there is one thing that will happen for sure and one thing that might happen.”
    “What will happen for sure is we will have a six month continuing resolution to extend the current appropriations bills from Sept. 30 until the end of March next year,” Lummis commented. “That will give whoever is president the opportunity to put together a budget after the beginning of their new term. That is all to avoid the fiscal cliff that is coming at the end of the year.”
    “What might happen is passage of a Farm Bill,” she added. “Only these major pieces of legislation will happen before the election because politicians are too touchy about preserving the status quo and seeing how the election will pan out.”
From the Senate
    From the Senate, Wyoming Senator Mike Enzi expects passage of a Farm Bill this year.
    “The House wants to pass a one year drought extension and also a one year extension on the Farm Bill,” explained Enzi. “The Chairman of the Senate Ag Committee Debbie Stabenow says it is not going to be a one year extension – it has to get resolved.”
    Enzi continued that the result is producers being left up in the air about drought provisions and other essential funds that originate in the Farm Bill. He also marked livestock predation and livestock forage as being important targets in the Senate version of the Farm Bill.
    “We need the provisions updated for 2012,” he said. “It will be done retroactively.”
    However, Enzi noted that there are two primary pieces holding up the legislation – nutrition and subsidies for high-cost crops, such as rice and cotton.
    “The limitations on what they can get for high cost crops puts them out of business, or at least definitely hurts,” he said, mentioning that both houses are hoping some of the details will be pre-conferenced during the August recess.
    Looking into September, Enzi said, “Debbie Stabenow said they would not pass a one year extension. She is trying to get them to take the Senate version.”
    A Farm Bill, if passed this year, will also likely include deeper cuts to nutrition programs to satisfy House members.
    “I really think they will get the differences worked out, and we will get it passed,” Enzi commented. “We need to do it before Sept. 30.”
    “Agriculture is very bipartisan, so they usually get it worked out,” he added. “I’m optimistic on the Farm Bill.”
Tax legislation
    Aside from the Farm Bill, there is also concern in Washington, D.C. about tax rates and increases that will occur after the Bush tax cuts expire on Jan. 1.
    “At the end of the calendar year, marginal tax rates will go up, estates taxes will go up, the alternative minimum tax will expire and all of the Bush tax cuts expire,” Lummis said.
    Enzi added, “There are some tax extenders and tax relief that has to be put in place. I would hope it happens before the election, but at least before the end of the year.”
    With estate tax of particular interest, Lummis commented, “At the end of the year, estate taxes will go back to 55 percent and a $1 million exemption. The stepped-up basis will go away – that is the great advantage to our current estate tax.”
    Lummis remarked that they are working hard to extend the estate tax, hopefully in perpetuity, adding, “I would like to have no estate tax at all, but it just isn’t going to happen.”
    Because Democrats hold onto the estate tax and have hotly debated the topic, both Lummis and Enzi feel that the current level is going to be “the best we can get.”
    Enzi predicted that one of the first major areas of debate in the new year will revolve around tax reform, including transitioning incentives.
    “If they eliminate some of the subsidies, as they talked about in Simpson-Bowles, I have talked about the need to transition those,” Enzi explained. “If some of the incentives are taken out overnight, there isn’t enough cash in America to pay the taxes on them.”
    Enzi has also written international tax legislation that attempts to solve problems with international corporate tax rates, which he says disadvantage the U.S.
    As the Wyoming Congressional delegation continues it’s journey across the state, visiting constituents and explaining the situation in Washington, D.C., watch for their return to Capitol Hill in September.
    The U.S. Congress is scheduled to reconvene on Sept. 10. Visit senate.gov or house.gov for more information on current floor schedules. Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Congressional Review and EPA
    U.S. Senator Mike Enzi said, “The EPA is trying to shut down coal and any kind of energy except wind and solar,” in a recent interview at the Roundup.
    Enzi, Wyoming’s senior senator, added, “I guess they have no concept of how much wind and solar energy it would take to power this country.”
    While natural gas used to be the “clean” solution to energy, Enzi said, “They are against all fossil fuels, because fossil fuels have carbon in them.”
    In attempting to end coal production and use, Enzi noted that there are $4 billion in loan guarantees for clean coal, which would provide a subsidy to producers if prices fall bellows levels that would support plan operation.
    “There were $80 billion in subsidies for wind and solar – a lot of which has been given out, but not one dime of the $4 billion in loan guarantees for coal has been given out,” he said.
    Enzi also noted that, while there are natural gas generators going up across the country, “There are going to have to be a lot of them to replace the goal generators going out of business.”
    With EPA regulations increasing the cost of operation or making operation impossible for coal generators, Enzi added that Congress is working to try to overturn EPA decisions and regulations.
    “EPA is doing some really strange things. We’ve tried to reverse some EPA decisions,” Enzi explained. “In the reversal process, even if we passed a bill in the Senate and the House, the President has to sign it, and I don’t think he’ll do that.”
    In order to streamline the process, Enzi has been working to reform the Congressional Review Act.
    “The Congressional Review Act is how we would eliminate regulations that we say were not done the way they should have been done,” he explained. “The Act should have been written so the if the House and the Senate repealed a regulation, it was gone.”
    Enzi noted that in its current sate, the Congressional Review Act has only been used successfully once.
    “I’m going to be working on reforms to the Congressional Review Act,” he added. “I think both sides  will see the need to reform it, because both sides will run into this situation at some point.”    




Casper – Proposed initiatives for the Wyoming Water Strategy Plan were open for discussion in Casper at the Oil and Gas Conservation Commission on June 4. 

The meeting consisted of four separate sessions that discussed water development, water conservation and protection, water management and water and watershed restoration. 

The completed initiatives were open for public comment, and the Wyoming Governor’s Office welcomes any comments, for and against the proposed initiatives, over the next several weeks. Of all the proposed initiatives, only five to 10 will be selected to be further expanded and contribute to the Governor’s Wyoming Water Strategy. 

Public comment

“This is the first opportunity for the public to look at and comment on the proposed initiatives, and we would like the public to weigh in on all of the initiatives,” commented Nephi Cole, policy advisor for Wyoming Governor Matt Mead. “We appreciate everyone’s feedback.” 

“There are a range of benefits and challenges with each proposed initiative, and each initiative came from the nine listening sessions that were held throughout the state and attended by the general public,” Cole added. 

Cole mentions the Governor’s Office has created multiple outlets for the public to comment and take surveys on which proposed initiatives they feel should be apart of the Wyoming Water Strategy. 

These outlets are the Facebook and Google Plus pages for the Wyoming Water Strategy, and comments will be accepted by emailing This email address is being protected from spambots. You need JavaScript enabled to view it..  

All four of the water strategies session meetings were recorded and archived and will be made available on YouTube for anyone who wants to watch them. 

Survey

“We are asking people to weigh in on the Facebook surveys about the initiatives, comment on the proposed projects for the plan and to tell us which initiatives they think are the most important to them,” encouraged Cole.

Cole emphasized the importance of filling out surveys. 

Also, when people are filling out the surveys, he said it is important that they do not make all answers equal, but rather to thoughtfully rank importance. Equal answers make it very difficult to prioritize the initiatives and guide any decisions that need to be made to help the water strategy plan move forward. 

“We hope that, as people answer those surveys, they will prioritize which issues they think are the most important in each subcategory thoughtfully and consider, if they were to select one or two initiatives for any given category, which ones would be the most important to them,” stated Cole. 

Initiatives 

“Out of the 50 pages of comments we received about the Water Strategy, we are going to have to wean down these initiatives down significantly,” commented Cole. “From the number currently present, we will reduce those suggestions to a manageable number of initiatives.” 

He added, “The initiatives right now are very broad, but any initiative decided here will be expanded on extensively to be a very developed, thorough and planned-out operation.” 

Cole continued, “Any operation and initiatives selected will involve key stakeholders, technical experts, and of course, the input of the agencies who will provide the oversight or the technical assistance on any given subject.” 

“Like the Energy Strategy, the Governor’s Water Strategy will be built on a couple of initiatives,” stated Cole, “and those initiatives will be shared with agencies and become measurable and traceable on a number of administration and legislative levels, but also with the people of Wyoming.”

Development and management

With the amount of comments and suggestions the Governor’s Office received from the public, four different categories have been made in the Water Strategy. 

These four areas – water development, water management, water conservation and protection and water and watershed restoration – are further subdivided to create all the initiatives that encompass all of the public’s concern with the proposed plan. 

The water development section consists of initiatives that address hydropower, planning and funding for water development and both small and large storage reserves for water.  

The water management initiatives include the areas of primacy and regulation, customer service and information about water. 

Conserve and protect

Planning initiatives, coupled with conservation incentives and credible decision-making, make up the water conservation and protection section of the Water Strategy. 

The last section of the water plan is water and watershed restoration, and it has two subcategories of initiatives, which are groundwater and surface water. 

“These initiatives are a pool of possibilities that will lead to the making of the Water Strategy,” commented Cole.

Several meetings will be held across the state for public input and comments about the proposed initiatives, and the Governor’s Office will be accepting comments about the initiatives for the next 30 to 60 days. 

Madeline Robinson is editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Newcastle – Congressional staff from three western states spoke on a panel in Newcastle on Sept. 14 at the Association of National Grasslands annual meeting. They reviewed relevant issues in North Dakota, South Dakota and Wyoming.

“One of the things Sen. Hoeven (R-N.D.) has been involved in recently is acknowledging that it’s important for the Forest Service to utilize existing science when building biological capability studies,” noted Sen. John Hoeven’s western North Dakota Regional Director John Cameron.

Recent fires in the state have sparked conversations about how range and grazing areas should be managed.

“He is also trying to increase communication between the Forest Service and the grazing associations when environmental assessments and records of decision are being made,” Cameron continued.

Daryl Lies, district representative for Congressman Kevin Cramer (R-N.D.), added, “There are also concerns about science dealing with the Bighorn sheep and domestic sheep issue.”

In South Dakota, freshman Senator Mike Rounds (R) has been tackling issues concerning the Environmental Protection Agency’s (EPA) waters of the U.S. rule, President Obama’s Clean Power Plan and the sue-and-settle tactics often used in environmental policy cases.

“These are three examples of areas where Sen. Brown is really committed to addressing our government’s over-regulation problem,” stated Sen. Rounds’ staffer Katie Murray.

Sen. John Thune’s (R-S.D.) field representative Mark Haugen addressed budget concerns related to fighting wildfires and protocols for listing endangered species.

“In the Black Hills, we are facing the potential listing of the northern long-eared bat,” he said. “They are dying from a disease called white-nosed syndrome. They are not dying because their environment is being destroyed.”

Representing Wyoming Sen. Mike Enzi (R), DeAnna Kay noted that Sen. Enzi is concerned about many of the same issues discussed by other congressional staff representatives and echoed statements supporting better science backing federal policies.

“Sen. Enzi is the lead sponsor on a bill that would require the federal government to consider science prepared by state, local and tribal biologists and wildlife experts when making a determination under the Endangered Species Act,” she remarked.

Some of the main concerns for Wyoming Congresswoman Cynthia Lummis (R-Wyo.) include controlling government spending and public lands issues.

“Congresswoman Lummis and Congressman Rob Bishop (R-Utah) recently held a field hearing near Evanston, mainly concerning H-2A visas and having to pay sheepherders more money, which would have huge impacts on the wool market,” commented Congresswoman Lummis’ field representative Matt Jones.

He also stated, “As a rancher and a person who has worked the land, public land issues are a passion of hers.”

In conclusion, Jones reiterated the sentiments of the congressional panel as attendees of the Association of National Grasslands annual meeting. He noted that it provided a good opportunity for federal officials to gain insight about the real issues affecting the people of the western states.

“Being here, I have heard some good things discussed. I want to thank everyone, including the local elected officials for being here,” he said.

Natasha Wheeler is editor of the Wyoming Livestock Roundup and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..