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Environmental measure backfires, but court gives victory to landowners

An issue that concerns California Alfalfa and Forage Association is the lack of maintenance in flood control systems. The problem surfaced again this winter when dairymen and growers lost millions of dollars due to flooding in the Mojave River region near Baker.

The Mojave River flood follows the levee break in 2004 in the Lower Jones Tract near Stockton. Around the time the levee gave way, a bill was in the works in the California legislature to require the Reclamation Board to include ecosystem restoration in flood control programs. CAFA joined a coalition of agricultural groups that opposed the legislation, which was tabled after the true cost of expanding the Reclamation Board’s mission became apparent.

The Mojave River flood should also be a warning about environmental restrictions that cause devastating losses which can be avoided when Mother Nature goes on a rampage. Heavy rains and the onslaught of water flowing from the San Bernardino Mountains hit a snag on the way to Soda Lake. A stretch of the lower channel near Oro Grande couldn’t handle the water flow. County officials cited environmental restrictions for not clearing the waterway despite repeated requests from landowners.

CAFA board member, Tom Ellis of Grimes, passed on the information about the Mojave River situation. He noted that it’s not unique and reported that dedicated bypass systems are being neglected in his area. What happened in the High Desert could happen in many areas unless more attention is paid to maintenance.

The restrictions that prevented clearing of the waterway in the High Desert backfired on the environmental protection measure. A local dairyman noted that any endangered species along the river were killed or flushed a long distance away by the rampaging water. When environmental restrictions cause severe flooding, taxpayers foot the bill for the devastating losses and the lawsuits that landowners file.

Important ruling

The Ninth Circuit Court of Appeals recently applied sound logic to hand a victory to an Idaho grower. The Pacific Legal Foundation (PLF), which represented the grower, called the ruling "an important victory for western property owners."

According to the PLF, the ruling "clarifies for the first time that environmental plaintiffs must present actual evidence that a species is likely to be harmed before an injunction can be issued against a property owner, and that a lack of evidence of past harm is indicative of the likelihood of future harm."

In 1961 the Idaho rancher began using water from a creek to irrigate alfalfa. Environmentalists got an injunction three years ago, claiming bull trout were being killed. But, they presented no evidence, the PLF reported. The PLF presented evidence that "no one has ever seen a bull trout injured in the creek, let alone killed" during 40 years of irrigation diversion."

The Ninth Circuit overturned the District Court, and remanded the case to the lower court for trial to consider evidence and lack of evidence presented. The PLF said the "unpublished decision" is the first time the Ninth Circuit clarified the type of evidence needed for an environmental plaintiff to get an injunction under the Endangered Species Act.

It should give property owners "hope where they have felt powerless against environmentalists' frivolous lawsuits for years," said Russ Brooks, managing attorney for the PLF's Pacific Northwest Center. "It's been a long time coming, but the tide is turning and it's turning for the rights of property owners and reasonableness in environmental laws," Brooks stated.

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