‘Bluster’ Can’t Replace Evidence in Enviro Case

     CHICAGO (CN) – An Illinois environmental organization can keep a $900,000 award from a company that sold it contaminated land for development as a nature preserve. The 7th Circuit found that the company, “undeterred” by a lack of evidence, tried to fill the gaps with “exaggerated outrage.”
     In 2000, The Nature Conservancy purchased 6,660 acres of farmland from Wilder Corporation of Delaware for over $16 million. The land was formerly home to a 6,000-head cattle operation, which Wilder continued as a tenant until the end of 2002. For the next three years, the Nature Conservancy leased the land to farmers who grew corn, soybeans, and hay.
     The sales contract required Wilder to pay remove all trash, hazardous substances, petroleum contamination and cattle sewage before vacating the property.
     In 2006, discovering petroleum-contaminated soil at the site of an undisclosed aboveground storage tank, The Nature Conservancy sued Wilder in state court. The complaint alleged that Wilder had breached contract by failing to properly clean the property and pay real estate taxes.
     Though the suit fell within the ten-year statute of limitations, Wilder claimed that the action was barred by laches, which applies when a plaintiff has exhibited unreasonable delay which prejudices a defendant.
     Illinois Federal Judge Michael Mihm rejected that argument and the 7th Circuit on Thursday affirmed the decision.
     Writing for a three-judge panel, Judge Ilana Rovner deemed the laches argument meritless.
     “This case proves the maxim that, in appellate briefing, bluster is inversely proportional to merit,” Rovner wrote. “Unsupported by any case law in Illinois or the Seventh Circuit, the undeterred defendant concedes that it can produce no evidence in support of a key element of its defense: prejudice. The defendant attempts to fill the gaps in law and evidence with exaggerated outrage. The district court was not persuaded and neither are we.”
     Because other tenants occupied the property after the purchase, Wilder argued that there is no way of knowing who caused the contamination. But during discovery, Wilder failed to claim that relevant evidence had been lost.
     “Wilder has not asked pertinent witnesses what, if anything, they recall about the relevant five-year period. It has not asked third parties who occupied the land to produce documents. Instead of establishing any prejudice, Wilder relies on bombast. Bluster and bombast are poor substitutes for evidence,” Rovner wrote.
     The court ruled that such evidentiary shortcomings caused by a defendant do not disqualify a claim on laches grounds.
     “It is not often that a defendant will admit that its defense consists of ‘little more than rank speculation,’ or that­ it is ‘incapable of coming forward with specific facts proving that it has been prejudiced.’ These concessions are tantamount to an admission that the defense is frivolous, and the argument on appeal borders on sanctionable.”
     The 7th Circuit affirmed the lower court’s $919,000 award to the Nature Conservancy, plus prejudgment interest and costs.

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