Legal Briefs newsletter


Fighting Lawsuit Abuse and Exposing Frivolous Lawsuits


Issue 31 - September 15, 2003

In this Edition:
Legal Reform: Environmental Litigation Threatens Endangered Species
Tort Du Jour: In this Reparations Case, the Slaveowners Sue the Slaves
Testimony: If Its Commercial, Its Not Free

Environmental Litigation Threatens Endangered Species


You know environmental lawsuits have spun out of control when barge activity on the Missouri River must come to a halt to preserve habitat for the nesting piping plover.

A federal district court decision ordering the Army Corps of Engineers to reduce water levels from the Missouri River dams so piping plovers, least terns and pallid sturgeons can breed on sandbars threatens to decimate the river's shipping industry, endanger water quality and reduce water supplies and power for communities in downstream states.

The ruling follows a lawsuit filed by the special interest group American Rivers and nine allies that sued the Army Corps under the Endangered Species Act (ESA) for failing to reduce water levels to protect the habitat of endangered species.

Judge Gladys Kessler, who wrote last month's original court decision, concedes significant human sacrifice: "Navigation will be interrupted for the remainder of the summer and barge companies will lose revenues. Water quality may be affected and there may well be higher water purification costs. Hydroelectric resources will be affected, and consumers may suffer higher costs."

But these hardships, in Judge Kessler's view, can't compete with the species at issue because, in her words, "there is no dollar value that can be placed on the extinction of an animal species - the loss is to our planet, our children and future generations." That is to say: the needs of a sturgeon are naturally placed so far above human needs that cost assessments should not even be considered.

Sadly, nonsensical litigation such as this is not rare. Rather, it is an epidemic that not only compromises human needs but, ironically, compromises the protection of endangered species.

ESA lawsuits are so routine that U.S. Fish and Wildlife Service staff spend more time and dollars handling litigation than saving endangered species. The FWS reports that as much as two-thirds of its budget for placing endangered species on the protection list is consumed fulfilling court orders and settlement agreements. Its $6 million budget for designating critical habitat was depleted by the end of July. FWS officials are asking Congress to authorize funds from other endangered species protection programs so they can complete pending court orders.

The environmental litigation craze dates to the Clinton Administration. In 2000, Clinton's FWS Director Jamie Rappaport Clark was forced to place a moratorium on 25 endangered species under consideration for protection so she could handle a flood of court orders. Calling it a "biological disaster," she protested that litigation "has turned our priorities upside-down. Species that are in need of protection are having to be ignored."

Judges' decisions, constrained by the rigid language of the ESA, also muddle priorities and discourage scientific determinations. Nowhere is this more true than lawsuits over "critical habitat designations" - a contentious mandate under ESA that frequently requires the protection of an endangered species' habitat over protection of the endangered species."

In fact, one court ruled that FWS must designate critical habitat for endangered species even if it is considered a lower priority than other protection activities.

Small wonder that the National Research Council has concluded, "designation of critical habitat is often controversial and arduous, delaying or preventing the protection it was intended to afford." Yet the majority of environmental civil cases filed are over designations, and in most cases, over missed designation deadlines due to resource constraints.

Environmental groups fuel the judicial absurdity and artfully use the courts to drive their political agenda. They also know it pays to take an agency to court. As required by law, attorney fees are funded by taxpayer dollars every time a plaintiff wins a case. That can mean big bucks. Data from the U.S. Department of Justice, as reported by The Sacramento Bee, shows that environmental lawyers typically charge $150 to $350 an hour. In the 1990s, the average award was $70,000, though tax-financed awards of $100,000-plus are not uncommon.

Congress must put an end to this litigation rage. Without needed reforms, frivolous litigation will continue to jumble priorities, sacrificing methods that truly protect species and wildlife.

-by Dana Joel Gattuso

Dana Joel Gattuso is a senior fellow at the National Center for Public Policy Research

Contact the author at
[email protected]


Tort Du Jour: In this Reparations Case, the Slaveowners Sue the Slaves

A group of Egyptians in Egypt and Switzerland are making plans to sue Jews everywhere but especially in Israel, claiming the Israelites led by Moses and Aaron stole "trillions" of tons of gold from Egypt during the Biblical Exodus.

This is, of course, the story in which the enslaved Israelis fled Egypt under God's instruction.

According to a translation provided by the Middle East Media Research Institute, the August 9, 2003 edition of the Egyptian weekly Al-Ahram Al-Arabi featured an interview with Dr. Nabil Hilmi, Dean of the Faculty of Law at the University of Al-Zaqaziq. In the interview, Dr. Hilmi says that Jews leaving Egypt under Moses and Aaron stole not only gold and jewels, but cooking utensils.

Uncongruously, Hilmi takes time to wish "peace" to Moses and Aaron as he recounts the two men organizing what Hilmi calls "greatest collective fraud history has ever known."

Hilmi also claims that enslaving the Jews was a great trial to the Egyptians: "A police investigation revealed that Moses and Aaron, peace be upon them, understood that it was impossible to live in Egypt, despite its pleasures and even though the Egyptians included them in every activity, due to the Jews' perverse nature, to which the Egyptians had reconciled themselves, though with obvious unwillingness."

Hilmi, however, is not completely unreasonable. He's willing to allow Jews 1,000 years to pay, as long as accumulated interest is paid.

-"Egyptian Jurists to Sue 'The Jews' for Compensation for 'Trillions' of Tons of Gold Allegedly Stolen During Exodus from Egypt," Middle East Media Research Institute, August 22, 2003 at http://memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP55603


Testimony

"Some overseas shoe-factory workers may benefit temporarily from the legal settlement announced Friday between Nike Inc. and labor activist Marc Kasky. We wish we could say as much for free speech in the United States. Kasky sued the Beaverton-based athletic-apparel company under California's truth-in-advertising law. His basic argument was that Nike lied in describing its efforts to improve worker conditions in factories where it does business. Even though no court ruled on the substance of Kasky's claim, Nike appealed to the U.S. Supreme Court, arguing that this misapplication of the advertising law deprived the company of its First Amendment right to defend itself in a political debate. Nike was right, but the court wrongly declined to hear the case in June, presuming it could get to it later, if necessary, once lower courts had ruled. That's a nice theory if it's not your money paying the lawyers. Nike decided, instead, to settle. The company will add $1.5 million to its factory improvement efforts -- and then shut up. It's that second part that should bother everyone. Justice Sandra Day O'Connor argued back in June that the California law as interpreted by the state's Supreme Court was an immediate threat to free speech. Subsequent events have proved her right."

-"Free Speech Loses a Round," Editorial, The Oregonian, September 13, 2003 at http://www.oregonlive.com/editorials/oregonian/index.ssf?/base/editorial/1063454631187750.xml


 Original articles in this edition of Legal Briefs may be reprinted provided source is credited.




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