“Congress intended endangered species to be afforded the highest of priorities.” That 1978 Supreme Court decision in the notorious snail darter case stopped Tennessee’s $100 million Tellico Dam. Thereafter, the Endangered Species Act would trump all else. The ESA is not about plants and animals despite its name. It’s about habitat — that’s land and water, public or private. Harm habitat in your own backyard and under ESA’s Section 11(b) you could get a year in federal prison and a $50,000 fine for each violation. Big Green wasn’t so big in 1978, but enviro trial lawyers danced with glee when the Tellico decision showed them how to get big: Sue the government for failing to protect habitat, collect legal fees from the U.S. Treasury, and groom others to do the same.
One of those “others” was a little New Mexico outfit named the Southwest Center for Biological Diversity. It attracted a lot of foundation grooming from Pew, Rockefeller, and Tides money, sued its way to power, and morphed into the multimillion-dollar lawsuit factory, the Center for Biological Diversity, based in Tucson, Ariz.
But CBD kept its ideology of “cattle free” for Southwest rangelands, and filed a lawsuit against the Forest Service to put many ranchers out of business at once — for harming habitat of the loach minnow. One of its targets was fifth-generation rancher Jim Chilton.
In 1991, Chilton Ranch bought the cattle grazing permit for the 21,500-acre Montana Allotment in Coronado National Forest in southern Arizona. Chilton respected the land and made continual range improvements much admired by the Forest Service.
But around 1998, Chilton began noticing that his Forest Service file on the Montana was being stuffed with baseless accusations, demanding that his permit not be renewed.
The Forest Service renewed Jim Chilton’s grazing permit for his excellent stewardship. CBD filed an administrative appeal and lost.
Then CBD posted an Internet “news advisory” of 21 photographs with captions asserting that Chilton was devastating the range. Them’s fightin’ words.
Dennis Parker, expert biologist, longtime Chilton friend, and newly minted lawyer, saw the Internet allegations and told Jim there was a defamation suit itching to be filed there. Jim called his cousin, veteran lawyer Gerald Chilton, who agreed. So together they filed a libel suit against CBD.
CBD didn’t use staff lawyers. Robert Royal, a vastly experienced trial lawyer in a big Phoenix law firm, led CBD’s case. So Chilton added Kraig Marton, superlawyer from another big Phoenix law firm.
At trial, Marton showed that four key Internet photos of “Chilton’s devastation” weren’t even on his land, they were on a nearby plot known as “Marijuana Flat,” trampled down by hundreds of cavorting greenies during a nature bash. A CBD staff member took the four “Chilton’s devastation” pictures from his party campsite, which proved he knew he was lying. The jury awarded Jim Chilton $100,000 in actual damages and $500,000 in punitive damages.
CBD appealed with a bigger lawyer, Thomas Burke of San Francisco, and argued they had a First Amendment right to lie. They lost.
CBD got a bigger lawyer, former Arizona Supreme Court Justice Stanley Feldman, to ask the state’s high court to hear the case, but they refused.
Jim Chilton told me that Feldman then threatened the ridiculous expense of a U.S. Supreme Court appeal, and offered to settle if Chilton paid $35,000. Chilton declined, but Feldman didn’t appeal.
In the end, the Center for Biological Diversity’s liability insurance paid the $100,000 and the group paid the $500,000 — quickly replenished by fundraising pleas.
Chilton wrapped up, “I wanted to beat those liars and I did.”
Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.
