February 4, 2011

A property owner gets his day in court

By A property owner gets his day in court

Author:  Damien M. Schiff

Yesterday, PLF scored a win in the Ninth Circuit Court of Appeals in Barnum Timber Co. v. EPA.  PLF attorneys represent Barnum Timber, a small, family-run timber company based in Humboldt County, California.  Redwood Creek, which runs through Barnum's timberlands, has been designated by EPA as an impaired waterbody under Section 303(d) of the Clean Water Act.  That designation has imposed onerous buffer zones that preclude Barnum from cutting timber within so many feet of the creek.  The listing also has significantly reduced the market value of Barnum's property.  PLF therefore filed suit in federal court to challenge the creek's listing, on the grounds that EPA's impairment designation was based on clearly faulty science.

The district court dismissed Barnum's claims on the grounds that the company didn't have "standing" to sue because it wasn't injured by the creek's listing.  PLF appealed that decision and the Ninth Circuit yesterday ruled 2-1 that the district court was wrong, and PLF was right, that Barnum has indeed been injured economically by the creek's listing, and that the economic injury allows Barnum to seek recourse in federal court.  Now the case goes back to the district court for briefing and a decision on the merits.

The decision is an important one for property owners throughout the West who now stand a better chance of getting a federal court to hear their challenges to onerous environmental regulations that reduce the value of their property.

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