Leveling the field for lawsuits

By Chris Collins / The Baker City Herald

A recent ruling by a three-judge panel from the federal Ninth

Circuit Court of Appeals could give private property owners the same

legal power to challenge federal agency decisions that environmental

groups have long enjoyed.

The playing field, as it were, seems to be much closer to level as a

result - at least in the Ninth Circuit, which spans most of the West,

including Oregon.

The ruling involves a case from Northern California, Barnum Timber Co. vs. EPA (Environmental Protection Agency).

Barnum contends the EPA wrongly designated a reach of Redwood Creek

as polluted, both because it's too dirty and its water is too warm.

The company further argues that the EPA's designation has harmed the

business by triggering more stringent state land-use rules, which in

turn reduced the value of the company's forest land.

Actually, it's more accurate to say that the company tried for several years to make those arguments.

Tried but failed, until the Ninth Circuit got involved.

Initially, Barnum Timber filed a suit against California regulators. The state court rejected the suit, telling the company it needed to sue in federal court.

Barnum Timber did so. A federal court ruled that the company lacked legal "standing" because it couldn't prove that the EPA's designation of Redwood Creek as polluted had directly harmed the business.

The Ninth Circuit judges, by a 2-1 vote, disagreed, and they overturned the lower court.

To be sure, this is only a partial victory for Barnum Timber. The company still must prove, in court, that EPA was not justified, scientifically speaking, in adding Redwood Creek to the list of polluted streams.

The important thing, though, is that the company will be allowed to argue its case.

Barnum Timber's long legal journey just to reach the courtroom contrasts dramatically with the easy path that groups such as the Sierra Club or the Wilderness Society frequently follow when they file lawsuits claiming a federal agency was too lenient, rather than too aggressive, in enforcing environmental laws.

Such groups rarely struggle to convince even a lower court that they have the legal standing that was, until the Ninth Circuit Court's ruling, denied Barnum Timber.

Moreover, environmental groups occasionally convince a judge to issue an injunction blocking a federal decision from taking effect until the lawsuit has been adjudicated.

We don't necessarily object to that. Lawsuits and injunctions are examples of the checks-and-balances designed into our republic; specifically, citizens using the judicial branch to try to check the power of both the executive (EPA and other federal agencies are run by people appointed by the president) and legislative (agencies enforce laws written by Congress) branches.

What does bother us, though, is the idea that a private property owner's grievances against a federal agency ought not carry the same legal weight as those invoked by a membership organization.

That's a gross unjustice in a country with a legal system that's ostensibly built on a foundation of equality.

To put it another way, the person who thinks a stream is polluted should have the same access to the courts as the person who thinks the same stream is pristine.

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The Baker City Herald
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