Individuals Hurt by Species Act
Get Relief from Supreme Court

By Frank J. Murray
copyright 1997, The Washington Times

The Supreme Court plowed new ground on environmental protection Wednesday, allowing private citizens to sue the government to save themselves from being bankrupted by attempts to save endangered wildlife.

A 9-0 opinion written by Justice Antonin Scalia reversed two lower courts and said Oregon ranchers Brad Bennett and Mario Giordano deserve a trial on charges the government improperly cut off irrigation water to save two types of fish.
Justice Scalia noted the Justice Department never tried to defend the 9th U.S. Circuit Court's reasoning and then dismissed the government contention that citizens may be kept out of court despite specific language that "any person may sue under the Endangered Species Act (ESA).
Saying the Interior Department Bureau of Reclamation operated the same way throughout the century, "it is not difficult to conclude that petitioners have met their burden" of showing the likely outcome, Justice Scalia wrote.
The issue is a touchstone for conservative interests concerned about federal actions that take land or earning power without compensation, so the plaintiffs were supported by a broad range of backers, all of them gleeful the decision was unanimous.
"That is the striking thing of the decision. I had hoped we'd win, but when you see 'unanimous,' that



is something," said Henson Moore, president of the American Forest & Paper Association.
"The American people would think, 'Why is it that someone who is affected personally can't sue when someone who wants to save the species can?' It's not very American to most people," he said.
"We think the court speaks pretty clearly," said Barry Hodge, general counsel for Defenders of Property Rights, which also filed a friend-of-the-court brief making its point that the law should not be a one-way street.
"Property owners now have access to the courts to sue under the ESA. They shouldn't be precluded from bringing a suit even though their objective wasn't to preserve species," Mr. Hodge said.
Environmental groups were largely silent about the decision, which ended their exclusive franchise to act in such cases. None had publicly backed the federal government's stance that private suits under the ESA could only be filed to seek more environmental protection, not less.


 
"From our point of view, there is some irony. The same people who are celebrating this decision today are the ones who have been advocating restrictions on environmentalists' access to the courts," said lawyer Heather Weiner, Sierra Club Legal Defense Fund analyst on endangered species issues.
"The Sierra Club has always supported the right of private citizens to sue," she said in explaining why federal lawyers had no apparent backing.
The decision forces a trial on claims that Interior Department agencies caused $75 million in damage during a 1992 drought by raising levels of Clear Lake and Gerber Reservoir to improve the habitat of the Lost River sucker and the shortnose sucker.
"This unanimous opinion tells the government, 'You've got to stop screwing around with people's lives and livelihoods and base this stuff on science and not what you feel like.' That gives some hope to people who've been ill-treated," said ranchers' lawyer Gregory K. Wilkinson, of Riverside, Calif.




Because water supplies were cut by 80 percent to some ranchers and to the Horsefly Irrigation District and Langell Valley Irrigation District, lands fell fallow and property fell from $800 an acre to $20 an acre, Mr. Wilkinson told the justices.
In an argument that found no support in a Nov. 13 hearing, Deputy Solicitor General Edwin S. Kneedler had said the 1973 law could be used only "to sue whoever might be causing pollution or harming a species.
The seeming doubters, Justice John Paul Stevens and Justice Ruth Bader Ginsburg, apparently came around when they learned the claim was neither premature nor hypothetical because crops died and cattle were sold at a loss because they had nothing to eat.
Justice Stevens said at the arguments there was no proof that even one gallon of water had been lost because of actions by the Bureau of Fish and Wildlife or Bureau of Reclamation.


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