U.S. Water News Online
BOISE, Idaho -- 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 Jonesā
family, in a closely watched case that addresses the standard by
which injunctions can be issued under the Endangered Species Act.
The Ninth Circuitās 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 Jonesesā 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 Foundationās 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
Jonesesā 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
environmentalistsā 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 Courtās decision, and
ruled that courts cannot defer to environmentalistsā 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 Jonesesā water," PLF's Brooks said.
As Brooks explained, the Jonesesā 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 environmentalistsā frivolous
lawsuits for years," added Brooks. "It's been a long time coming, but
the tide is turning and itās turning for the rights of property
owners and reasonableness in environmental laws."
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