Finally. Some sense from the 9th Circuit - ESA

[Crowdog]

NEWS RELEASE

Contact: Dawn Collier
Media Director
Pacific Legal Foundation
(916) 419-7111

Russell C. Brooks
Managing Attorney
Northwest Center
Pacific Legal Foundation
(425) 576-0484

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NINTH CIRCUIT SAYS ENVIRONMENTAL ACTIVISTS MUST
PROVE HARM TO SPECIES, NOT JUST ALLEGE IT,
TO INVOKE ENDANGERED SPECIES ACT

Idaho Rancher’s Case Means Environmentalists Can No Longer Terrorize Property Owners with Baseless Allegations
BOISE, ID; April 25, 2005: In an important victory for western property owners, the United States Ninth Circuit Court of Appeals has ruled for Pacific Legal Foundation, and Idaho rancher Verl Jones’ family, in a closely watched case that addresses the standard by which injunctions can be issued under the Endangered Species Act. The Ninth Circuit’s ruling clarifies—for the first time—that environmental plaintiffs must present actual evidence that a species is likely to be harmed before an injunction can be issued against a property owner, and that a lack of evidence of past harm is indicative of the likelihood of future harm.

For years, environmental plaintiffs have been able to get injunctions ordering private property owners to cease legal activity on their land on the basis of mere allegations alone. PLF has long argued, as it did in the Joneses’ case, that there must be an evidentiary showing of real harm to a species before a court can issue an injunction that would result in serious economic harm to the property owner. The Ninth Circuit Court of Appeals agreed.

"The court said environmentalists have to prove their case, not just allege it," said Russ Brooks, managing attorney for Pacific Legal Foundation’s Pacific Northwest Center. "The court’s decision means that environmental activists can no longer use the Endangered Species Act as a weapon against property owners without a shred of evidence that any species is actually being harmed."

"For too long, environmentalists have been able to easily obtain injunctions against property owners on the basis that courts should give the benefit of the doubt to the species. The Ninth Circuit has just put environmentalists on notice that now they are going to have to give courts legitimate evidence of a likelihood of harm—they can’t get away with destroying people’s lives on baseless allegations anymore," Brooks said.

The Jones family operates a small ranch near Challis, Idaho. Since 1961, they have diverted water from nearby Otter Creek in the summer months to irrigate their alfalfa pastures for livestock.

An antigrazing, environmental activist group, the Idaho Watersheds Project, sued Verl Jones and his family in 2001, claiming the family was violating the ESA by diverting water from Otter Creek and killing bull trout protected under the Act. The group presented no evidence that bull trout were being harmed to support their claim.

PLF says the environmental groups’ real aim was to shut off the Joneses’ water use to force the family into bankruptcy and off their land. PLF presented evidence to the court, including testimony by the Jones family and a longtime ranch hand, that no one has ever seen a bull trout injured in Otter Creek, let alone killed, in the 40 years the family has operated their irrigation diversion.

Nevertheless, the federal District Court granted the environmentalists’ request for summary judgment and issued the injunction, ordering Jones to stop diverting water to the family ranch. As a result, the Jones family has been forced to buy about 100 tons of hay per year to make up for the loss of irrigation water for the past three years.

The Ninth Circuit overturned the District Court’s decision, and ruled that courts cannot defer to environmentalists’ mere assertion of harm to a species. The court reversed and remanded the case to the lower court for trial to consider the evidence—and lack of evidence—presented. The unpublished decision is significant because it is the first time the Ninth Circuit has clarified the type of evidence that must be demonstrated in order for an environmental plaintiff to obtain an injunction under the ESA.

"The Ninth Circuit said that if the evidence shows a bull trout has not been harmed in 40 years, it isn’t likely to be harmed in the next 40 years—certainly not likely enough to support an injunction shutting of the Joneses’ water," PLF’s Brooks said.

As Brooks explained, the Joneses’ case has been widely watched by Idaho property owners who have for years been terrorized by environmental activist groups that have used the ESA as a means to shut down land use activity they oppose.

"For the Jones family, like other citizens in Idaho and across the west, the Endangered Species Act has brought nothing but despair, hardship, and lawsuits. Instead of restoring fish, the ESA has been used by environmental groups to hurt people who work the land for a living," said Brooks.

"This decision should give a lot of property owners hope where they have felt powerless against environmentalists’ frivolous lawsuits for years," added Brooks. "It’s been a long time coming, but the tide is turning—and it’s turning for the rights of property owners and reasonableness in environmental laws."

About Pacific Legal Foundation

Founded in 1973, Pacific Legal Foundation is a national leader in the effort to reform the Endangered Species Act and raise awareness of the Act’s impact on people. PLF’s Pacific Northwest Center is located in Bellevue, Washington. More information on the Foundation can be found at www.pacificlegal.org.

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[primergray]

Blair Will is an Environmental Lawyer that is also an OHVer. This is the answer I got when I asked if this 9th Circuit Decision would help Off Roaders/Land Owners and explain why it would or would not.

As posted on JeepAholics
http://www.jeepaholics.com/support/t...TOPIC_ID=39435

Jack,

Sure. Briefly, our law is composed of statutes and case law. Statutes are created by act of the legislature (state or Congress). Within the statutory area there are sublevels of regulations and administrative rules, created by state or federal agencies. The issue of the value of a published opinion has to do with case law, which is judge made law, derived from prior decisions of the courts. This is what we refer to as "precedent".

A hypothetical example: The federal Endangered Species Act prohibits "take" of endangered animals and plants. Of course, when Congress passed the law, it principally meant you can't kill endangered species. A "take" prohibition means you cannot hunt an endangered species. That is pretty clear. But, lets say you are a farmer with a field wherein lives a endangered field mouse. You harvest the field, as farmers do, and in the process a certain number of field mice are run over by the tractor. Does this count as a "take" of the mice prohibited by the ESA? The statute (law) doesn't say. Ah, but perhaps someone before had this same fact situation and the court ruled that take incidental to a lawful activity IS NOT prohibited under the ESA. My job, as an attorney for the farmer who has been sued under the ESA, is to find this prior case. I cite it in argument to the court, basically saying, this issue has already been litigated and the ESA does not prohibit my client's conduct.

This is the reason why being able to cite a case as legal authority is important. The rule of law in the Idaho case here is that an injunction will not issue unless the plaintiff environmental group can demonstrate that the activity (diverting water) will CERTAINLY result in adverse impact to the species. Conjectural damage is not good enough. That is a good rule of law to have in the bag if you are opposing an ESA lawsuit where the plaintiff wants an injunction. However, as a general rule, an unpublished case is not citable. Therefore, while it is an enunciated rule by the court, it is not all that useful for the next attorney facing a similar case.

Let me know if that helps.... :-)

Blair