May 2005
Ninth Court Affirms Activists
Must Show Harm
In an important victory for western property owners, the United States Ninth Circuit Court of Appeals has ruled for Pacific Legal Foundation (PLF), 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. Long known for controversial rulings, the Ninth Circuit's affirmation 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 lack of likelihood of future harm.
For years, 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 Jones' 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 PLF'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."
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. But 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 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 off the Jones' water," PLF's Brooks said. "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." (www.pacificlegal.org, 4/25/05).
