Verl Jones has got to be smiling to himself about now. It's just
sad he can only be here in spirit to celebrate a true moment of
jurisprudence sanity returning to our state.
Verl, a lifelong Challis resident, and his family own a small
ranch. Since 1961 they had used a legal Idaho water right to divert water
from a small creek to irrigate alfalfa fields were they grew hay to feed
In December 2000 the activist Idaho Watersheds Project crew, headed
by Jon Marvel, sued the Jones family claiming - without a single shred of
evidence - they were violating the ESA because diverting water was killing
bull trout. Let me restate that again for emphasis: claiming - without a
single shred of evidence - that bull trout were being killed.
The Jones family, plus a longtime ranch hand, testified that there
had never been a bull trout killed or even injured in the 40 years they had
been diverting water. They rightfully concluded that the real motive behind
the case was to financially drive them off their land.
Incredibly, a Federal judge ignored their first hand rebuttal
testimony and issued an injunction ordering the ranching family to stop
diverting water. For the past three years the Jones family has been forced
to buy about 100 tons of hay every year to make up for the loss while they
appealed the obviously logic-challenged judicial ruling.
On April 25 the Ninth Circuit Court of Appeals reversed the District
Court's decision ruling environmental activists cannot use the Endangered
Species Act (ESA) as a weapon unless they can first actually prove something
is harming a species. The Ninth Circuit judges rightfully decided that
courts cannot simply accept at face value claims by environmental extremists
that harm to a species is being done. The Court sent the case back for
trial so that evidence, or lack of evidence, can be evaluated.
The ruling finally sets an critically important bar to be cleared
when enviros try to use the ESA as an unrestricted hammer against Idahoans:
they must prove harm is being done before an injunction can be issued. The
ruling also notes that if there is no evidence a species has been harmed in
the past then it probably means it won't be harmed by the same situation in
Verl Jones died in November 2003 so he never got the chance to see
his common sense vindicated. But the victory over out of control
environmental extremists is a true legacy of which his family and Idahoans
everywhere can be proud.
Norm Semanko is Executive Director, Idaho Water Users Association