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Court trout ruling reversal
aids ranchers
By PATRICIA R. MCCOY Idaho Staff Writer
pmccoy@capitalpress.com
A
ruling by the 9th Circuit Court of Appeals
restoring irrigation rights to a Challis, Idaho,
rancher, may set a new precedent in Endangered
Species Act lawsuits.
That’s because the ruling said evidence of past
harm is required to prove harm to species.
The case is now remanded to Idaho’s federal court
in Boise.
The case was filed against Custer County, Idaho,
rancher Verl Jones by two environmental groups,
Western Watersheds Project and the Committee for
Idaho’s High Desert, alleging a stream diversion
used by the Jones family for more than 50 years to
irrigate alfalfa fields violated the ESA and
killed bull trout.
The diversion was from Otter Creek, a tributary of
Panther Creek. Bull trout have never been found in
the stream above the Jones diversion since the
ranch was established.
In 2003, Idaho Federal District Judge B. Lynn
Winmill sided with the environmental groups,
ordering a permanent injunction on the Jones
diversion. That order cut the family’s hay
production by 150 tons a year and nearly
bankrupted the ranch. Jones was also ordered to
pay $36,000 for WWP attorney fees.
Since the 2003 ruling, the Jones ranch has leased
its water rights to the U.S. Forest Service for
$20,000 a year.
Jones, 87, died shortly after the order was
issued. Jerry Hawkins of Challis, a longtime
friend of the rancher, and family members said the
stress of the federal court decision and the order
to pay attorney fees may have been too much for
Jones.
The Jones family was represented by Russell
Brooks, of the Pacific Legal Foundation, who said
the 9th Circuit ruling is a huge victory for the
little guy.
“I think it gives folks hope. For many years
radical environmental groups like WWP could
terrorize people in Idaho, basing their lawsuits
on water or land use. Now they’ve been beaten and
hopefully the tide is turning,” Brooks said.
“There has not been a bull trout seen harmed in
that ditch in 40 years, not since 1961, and we
think that’s a good indication that you will not
see any dead bull trout or harmed bull trout in
the next 40 years. The 9th Circuit agreed with
us,” the attorney said.
The Jones family now has the right to seek
attorney fees, which amount to as much as
$100,000.
The Idaho Farm Bureau filed as a friend of the
court, and aided the Jones family during the legal
proceedings. The court ruling is as yet
unpublished, but is available through Lexus Nexus,
or from the farm bureau.
Boise attorney Laird Lucas, WWP attorney, said the
only winners are lawyers, who will earn more
billable hours as they argue the case in U.S.
District Judge Edward Lodge’s court.
Lucas said he was confident his side would
prevail.
“It’s not rocket science. Unscreened diversions
hurt fish,” Lucas said.
No date has been set for the new trial in the
case.
Pat McCoy is based in Boise. Her e-mail address is
pmccoy@capitalpress.com.
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