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RANCHING VICTORY IN 9TH CIRCUIT COURT OF APPEALS
BY JAKE PUTNAM, IDAHO FARM BUREAU NEWS

(Sacramento) The 9th Circuit Court of Appeals ruled that a Challis, Idaho ranch family can start ranching again.

The Western Watersheds Project sued Verl Jones in 2001 claiming that the rancher violated the Endangered Species act by diverting water from Otter Creek and killing endangered bull trout. Otter Creek is a tributary of Panther Creek which flows into the
Salmon River. Federal biologists say it is habitat for bull trout, a species listed under the Endangered Species Act.

Federal District Judge Lynn Winmill ordered Jones to stop diverting water, which cut into the families hay production and nearly bankrupted the ranch. They were also ordered to pay $36,000.00 to Watershed’s attorney Laird Lucas of Boise.

Friend Jerry Hawkins of Challis says the stress of the Federal Court decision and the order to pay attorney fees may have been too much for 87-year old Verl Jones, he passed away shortly after the order to pay attorney fees.

“It’s a huge victory for the little guy and I think it gives folks hope,” said Russell Brooks of the Pacific Legal Foundation

“For many years environmental radical groups like the Idaho Watersheds project could terrorize people in Idaho basing their lawsuits on water use or land use now they’ve been beaten and hopefully the tide is turning,” added Brooks.

Some attorneys think the 9th Circuit may have set new doctrine in all ESA lawsuits; the court ruled that in order to prove harm to species there has to be evidence of harm in the past.

“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 and the 9th circuit agreed with us, they said ‘Lack of harm in the past can certainly be indicative of whether or not harm will occur in the future,’ said Brooks.

No one has ever hooked a Bull trout or any other kind of trout on Otter Creek according to Ward Jones. He says downstream beaver dams have shut off the upper reaches of the creek to trout. The beaver dams are still there, with no plans to have them removed to enhance habitat.

“Since we were old enough to do anything or know anything we would go up on the ditch and in all those years of turning that ditch on shutting it off in the fall, never seen any sign of any kind of fish up there,” said Jones. “National Marine Fisheries even said that Otter creek, the way it is had no impact on the Bull trout recovery, and their testimony and everything was completely ignored in the court ruling and it just wound up where it is now.”

Russell Brooks and the Pacific Legal Foundation set out to prove that the Jones Ranch were good stewards of the land and never harmed habitat, they forced the Watershed Project Attorneys to prove that first--Bull trout flourished in Otter Creek, and their demise were the result of ranching practices; the Watershed’s attorney couldn’t prove either

“I think this court decision sends a message to these groups if they are claiming harm to a species they’re going to provide hard evidence of that harm, they’re not going to get a rubber stamp in the District Court,” said Brooks.

The Jones’ now have the right to seek Attorney fees, not only on appeal which amount to as much as $50,000 and also they can ask for attorney fees in the District court amounting to $50,000.

Brooks expects the Western Watershed Project to file another lawsuit in District Court. “He must require them to provide some evidence, whether or not they can come up with the evidence is another question and we contend that they can’t,” said Brooks.