Court bull trout ruling reversal aids ranchers

By PATRICIA R. MCCOY  Idaho Staff Writer
April 29, 2005 - Capital Press

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 The court ruling is as yet unpublished, but is available through Lexus Nexus, or from the farm bureau.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.