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Targeting environmental suits proves challenging

Posted: Wednesday, April 09, 2003

JUNEAU (AP) -- Murkowski administration lawyers are trying to come up with a way to make environmental groups pay more legal costs when they sue the state. But a couple of the approaches they've tried haven't panned out.

At issue are court rules dealing with so-called public interest litigants -- in general, people who sue, not for economic benefit, but to affect public policy and whose suits would benefit a number of people.

Currently, court rules allow such litigants to recoup attorney fees when they successfully challenge the state, even if they only succeed on parts of their case. And such groups aren't liable for the other party's attorney fees when they lose.

Some Republican lawmakers have long argued that those rules give environmental groups an incentive to file lawsuits.

''There's nothing but upside, there's no potential downside,'' said Senate President Gene Therriault, R-North Pole.

Randy Virgin of Alaska Center for the Environment disputed the notion that environmental groups file suits willy-nilly.

''If we were to bring a frivolous or baseless case, it would get thrown out of court and we'd be charged fees,'' Virgin said.

The Murkowski administration introduced bills this year that would change the court rules to prevent people from being treated as public interest litigants in some lawsuits against the departments of Fish and Game, Resources or Environmental Conservation.

One problem with that approach, though, is that the court rule change probably would require a two-thirds vote of both the House and Senate. The Democratic minority in the Senate is large enough to block that from happening.

A Senate Resources subcommittee came up with amendments to the administration's bill that would not specifically change the court rule. Rather, they would change state statute to prevent courts from discriminating in favor of public interest litigants in awarding fees.

That change could have eliminated the need for a two-thirds vote, said Sen. Ben Stevens, R-Anchorage.

The subcommittee amendments also would not have singled out environmental lawsuits, but would have prevented any party from having special status in the award of attorney fees.

That drew fire not only from environmental groups, but also from groups such as the Disability Law Center and from attorney Ken Jacobus, who at times has represented the Republican Party.

Jacobus, who said he was not testifying on behalf of the party, told the Senate Resources Committee on Monday that people should be compensated when they sue the government in public interest cases.

''It's because the government has done something wrong,'' Jacobus said.

He also argued that the bill still amounted to a change in court rules and would require a two-thirds vote.

After Jacobus testified, Sen. Fred Dyson, R-Eagle River, said he would not go along with the subcommittee's proposal, so there were not enough votes for it to pass.

The Resources Committee agreed to send the bill in its original form to the Judiciary Committee, but a hearing originally scheduled this week in that committee has been postponed for at least a couple of weeks.

Craig Tillery, an attorney in the Department of Law, said he could not say what the administration's next step will be.



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