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Thanks to Murph for sending this to me....
Subject: [Landuse] 9th circus says "eco's must prove harm" no allege it.
very surprising coming from this liberal court.
coop
<http://www.lewisnews.com/article.asp?ID=101394>
http://www.lewisnews.com/article.asp?ID=101394
NINTH CIRCUIT SAYS ENVIRONMENTAL ACTIVISTS MUST PROVE HARM TO SPECIES,
NOT JUST ALLEGE IT, TO INVOKE ENDANGERED SPECIES ACT
Posted on: 4/25/2005 11:39:00 PM -
<http://www.lewisnews.com/memberdisp.asp?ID=162> Columnist
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
<http://www.pacificlegal.org/> www.pacificlegal.org.
"The only thing necessary for evil to triumph is for good men to do
nothing." --Edmund Burke (1729-97)
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I'm speechless.........[:D][:D][:D]
Seriously though, this is a big deal for everyone that has suffered under the hand of the EcoNazi's and thier legal assults. Looks like this 9th circuit precident could be used in other areas that have been closed using these very same principles.
RigRater: 662RRv1.0 w/ BOA of 24.0 http://www.jeepaholics.com/rides/view.asp?id=1079
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thats what I thought when I read it too....
what color is the sky on your planet?
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Wow, who would have thought that the 9th circut DC would do something so "un-liberal?"
Money rules...The parties lie to us and the political speakers mislead us.
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This is the most amazing thing I've seen happen in years.
Seriously....I'm just BLOWN AWAY.
This is gonna have HUGE repercussions for us! Giant!!!
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well...its an unpublished opinion. So, unless it is subsequently certified for publication, it cannot be cited as legal authority and has very little, if any, precedential value.
Blair
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Blair,
Could you shed a little more light on the difference between a "published" and a nonpublished" decision?
Thanks!!
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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
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Let me see if I got this straight. The Decision by the 9th Circuit cannot be used to argue future cases because it is an "unpublished" opinion.
Correct?
Jack
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California:
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).
http://www.courtinfo.ca.gov/rules/titlethree/title3-61.htm
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Federal:
Each Court of Appeals has its own local rule regarding the citation of unpublished opinions. All allow the citation under some circumstances, such as where relevant to assertions of claim preclusion, issue preclusion, or law of the case. Otherwise, there are considerable differences. The Second, Seventh, Ninth, and Federal Circuits generally prohibit the citation of unpublished opinions outside of those limited uses.3 The First, Fourth, Sixth, Eighth, and Tenth Circuits discourage citation of unpublished dispositions and allow it only for purposes of persuasion on a material issue if no published opinion adequately addresses the issue.4 The Third, Fifth, and Eleventh Circuits have no such prohibition.5 The D.C. Circuit allows the citation of unpublished opinions issued on or after January 1, 2002
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