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Appeals court rules plaintiffs must prove 
harm to invoke Endangered Species Act

BOISE, ID (04/28/05) -- The U.S. Ninth Circuit Court of Appeals has ruled that in endangered species cases plaintiffs must present evidence that a species is likely to be harmed before an injunction can be issued against a property owner. The Pacific Legal Foundation (PLF), representing an Idaho rancher, called the ruling an important victory for western property owners.

The court's ruling clarifies, for the first time, that  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.

PLF said that environmental plaintiffs have,for years, been able to get injunctions ordering private property owners to cease legal activity on their land on the basis of mere allegations alone. PLF said it 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.

In 2001, 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 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.

PLF said 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.






Page Updated: Thursday May 07, 2009 09:15 AM  Pacific

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