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Monday, June 17, 2024 | Back issues
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Logger May Challenge Watershed’s Protection

(CN) - The 9th Circuit on Thursday resurrected a timber company's lawsuit questioning whether a California watershed deserves to be on a list of polluted waters.

The federal appeals panel in San Francisco ruled 2-1 to reverse a district court's finding, which barred Barnum Timber from going forward with its suit because the company had not shown that it had been harmed by the watershed's designation.

Barnum sued the Environmental Protection Agency after the agency approved a state list of "impaired water bodies" that included the Redwood Creek Watershed. Redwood Creek had been on the state's list of polluted waters since 1992, and a 2006 reevaluation of that list found that the creek was still "impaired by both sediment and temperature," according to the ruling.

Barnum objected to the listing, claiming that it had resulted in higher costs and a decline in property values. The district court dismissed the case for lack of standing, despite Barnum's expert testimony arguing that its land had lost value because of the listing.

The 9th Circuit disagreed, however, suggesting that the lower court's bar for standing had been placed too high.

"Barnum alleges as its injury-in-fact that it suffered a reduction in the economic value of its property in the Redwood Creek watershed," Judge Jay Bybee wrote for the panel. "A specific, concrete, and particularized allegation of a reduction in the value of property owned by the plaintiff is sufficient to demonstrate injury-in-fact at the pleading stage."

While the demands for evidence to support standing could increase as the case moves ahead, at this early point, Barnum had met its burden, Bybee added.

The panel reversed the district court's dismissal and remanded the case for a second look.

Writing in dissent and sitting on the panel by designation, U.S. District Judge James Gwin argued that Barnum's allegations were not specific enough to confer standing.

"Because I believe that Barnum's claimed injuries are, at best, conjectural or hypothetical," he wrote, "because I believe there is no causal connection between EPA's acts and the speculative injuries claimed by Barnum; and because I believe that nothing EPA could do would redress Barnum's speculative injury, I dissent. As described, any injury that Barnum has suffered - and it is nowhere clear that Barnum has suffered any injury - results from California's acts and could not be remediated by EPA."

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