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Supreme Court Lets Species Act Foes File Suit

March 20, 1997|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — In a victory for farmers and land developers, the Supreme Court on Wednesday gave these frequent critics of environmental regulation the right to go to court to challenge officials who may have gone too far in protecting endangered plants and animals.

The unanimous ruling reverses the more liberal approach of the U.S. appeals court for the West Coast, which has allowed lawsuits only by those who want more, not less, protection for threatened species.

Since 1973, the Endangered Species Act has included a provision that allows "any person" to bring a lawsuit to enforce its mandate. This "citizen suit" has been used effectively by environmental activists to force government agencies to adopt new and stronger regulations.

But more recently, growers and ranchers facing drought conditions in Oregon and California have gone to court to fight moves by federal agents that diverted water away from irrigation to protect fish.

Until now, they have been barred from having their claims heard.

Access to the courts is not for "environmentalists alone," wrote Justice Antonin Scalia. While the law must protect endangered species, it also must "avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives," he said.

Nearly two decades ago, in the snail darter case, the Supreme Court stressed that all steps must be taken to protect the tiny fish, regardless of the economic impact.

The current case concerned the fate of the equally unglamorous shortnose sucker, another endangered fish. But this time the court stressed that "economic consequences" of an environmental rule must be considered.

Farmers and developers hailed the ruling as a significant procedural victory that will affect all manner of future disputes involving environmental regulations. While the ruling interpreted the Endangered Species Act, lawyers said that the decision likely will affect other environmental laws that have similar provisions allowing citizen suits.

"This momentous decision upholds the right of farmers and ranchers to address arbitrary actions of government bureaucrats who thumb their noses at science and common sense in their pursuit of species protection at any cost," said Bob L. Vice, president of the California Farm Bureau.

"This means the law is not a one-way street," added Gregory K. Wilkinson, the Riverside lawyer who appealed the case to the high court. "Until this case came along, the 9th Circuit [Court of Appeals based in San Francisco] has welcomed environmental plaintiffs but made life difficult for those with economic interests."

Environmental advocates had a muted reaction to the ruling, noting that they have fought for a broad use of the "citizen suit" provisions in the law.

"The plaintiff ranchers must now actually prove their claims at the trial court level," said Bill Snape, legal director for Defenders of Wildlife.

The ruling's impact may be muted in Orange County, once a battleground over the rare songbird called the gnatcatcher, because of a new land-use program emphasizing compromise rather than lawsuits. The city of San Diego approved a similar program earlier this week.

The program, launched in central and coastal Orange County last year, creates land preserves while allowing some developers to bypass the Endangered Species Act and could quell lawsuits from environmentalists and landowners alike.

"We think that we've gotten into a very creative and effective program to deal with species which would virtually eliminate the need for us to pursue any kind of separate litigation on endangered species," said Larry Thomas, spokesman for the Irvine Co., which helped spearhead the plan.

But environmental attorney Joel Reynolds, who sued the federal government to protect the gnatcatcher, said he fears the effect of the Supreme Court ruling.

"We're worried about it," said Reynolds, senior attorney with the Natural Resources Defense Council in Los Angeles. "Our main concern about the decision is that it will open the door to a wave of obstructive litigation that will make the protection of wildlife even more difficult than it already is."

Christine Diemer, executive director for the Orange County Building Industry Assn., who supports the decision, said it may benefit some smaller landowners in Orange County by giving them a forum to speak out on how an endangered-species listing affects their land.

"This expands the right of affected parties to be involved in the listing process," Diemer said.

The ruling was a defeat for the Clinton administration, which tried to block the suits by environmental critics.

California Atty. Gen. Dan Lungren, meanwhile, filed a friend-of-the-court brief urging the justices to permit "legal checks on over-regulation" by federal agencies.

The case began more than five years ago during a drought affecting the Klamath River project in southern Oregon and Northern California.

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