Property Rights Foundation of America®

Presented at the
Tenth Annual National Conference on Private Property Rights
Property Rights Foundation of America, Inc.
Albany, N.Y. - October 14, 2006

TURNING THE TABLES —
DEFAMATION SUIT DEFEATS ENVIRONMENTAL GROUP

JAMES K. CHILTON, JR.
Chilton Ranch & Cattle Co., Arivaca, Arizona

Thank you, Carol. Yes, I have an investment banking service, but the old saying is, you can take the boy out of the country but you can't take the country out of the boy. And I've been ranching full-time, half-time for many, many years, and it's more of a lifestyle, it is a tradition, and perhaps a genetic defect.

The first thing I'd like to do is introduce my wife, Sue. This is my wife, Sue, of 43 years.

I paid my own way here. I'm receiving no honorarium. The last time I received an honorarium I was so impressed with the group I was speaking before that I gave the $1,000 back to them for what I thought to be a very worthy cause. When I inquired how they were going to use it, they said that, ah, they had this new fund. It is a better speakers fund for next year they were going to put it in.

Our ranch covers about 85,000 acres. Two thousand acres of it is private property, deeded, and it consists of old homesteads, old homesteads all around the ranch. It's not contiguous, 160 acre homesteads. We run about one cow for every 50 acres. We have 11 to 18 inches of rain. It's south of Arivaca, Arizona. Arivaca is down near the border. We run our cattle from Arivaca, Arizona, clear to the international border, and it's about 19-1/2 miles from the house. It takes us an hour and a half to get there by road.

Yes, as Mr. Cohen indicated, we've won a wonderful lawsuit against the Center for Biological Diversity.

Every lawsuit, I presume—at least I've only had one lawsuit—comes from a deep anger, a deep feeling that you have been maligned, slandered, libeled, and if there's anything about cowboys, they're true, they're honest, and they have integrity. Their word is their bond. And everything that happened to me was based on misrepresentations, a false sense of what the Endangered Species Act was all about, a corruption of the idea of what government is all about.

It started first when a minnow, a minnow which was located in a 5,000 square mile, three-river basin in northern Mexico, swam under the fence, the international boundary, and onto some Forest Service property and onto my private property. This is a true wetback. And the government opened their arms and treated it as the messiah. I mean, here was a tool, a surrogate, because there was only one other place in the United States where it had been listed. And it was considered an endangered species, not because it was. Actually, 99.7 percent of all the fish in this 5,000 square mile basin are Sonoran chubs. There was only one little part on the neighboring ranch where these exist in the United States; so, therefore, it had to be an endangered species. Somehow it didn't know its proper ecosystem.

The problem started then and the Forest Service decided for the first time ever to do NEPA on the renewal of my grazing permit. (1) I wondered, look, in the law and for a hundred years my ancestors and ourselves, every ten years, we have the preference right to renew our grazing permit. And all of a sudden the government had to do NEPA to determine whether they should make the decision to renew the permit? I asked my federal Forest Service ranger in confidence why. He says, because the Tucson office of the Forest Service wants to give everybody a shot at you.

Well, who shot?

The Center for Biological Diversity, which is a very radical activist organization, as you well know. The first thing they did was file a lawsuit and said that the Forest Service hadn't properly consulted with the U.S. Fish and Wildlife Service over this little wetback that came across underneath the fence and into this wash. Never mind, incidentally, this wash is always dry in May and June, and any wetback that swims under the fence dies. So it seemed a little ridiculous, but the implications were that they asked for an injunction, the removal of my cattle, breaking me, while the consultation process took place. Thank goodness, the judge did not rule in their favor, so we kept ranching while they kept bull shitting.

The Forest Service settled out of court. Without our knowledge, the Forest Service met and agreed to fence off the little portion of this wash, this dry wash, from my cattle grazing; so they removed it from my allotment. It wasn't a significant loss, but it was the principal of the thing that bothered me. They sued us again in 1999. This is the Center for Biological Diversity. Same story. They named several other species. Some of them have already been de-listed. The basic thrust of the lawsuit is, stop grazing until consultations on these alleged species have been completed.

Well, it kind of made me mad. In fact, I was darned angry. Why was I subjected to these lawsuits and why did the federal government have to write a biological assessment on these species that essentially weren't on my allotment? Another species, lesser long-nosed bat, no one had ever, ever seen that on our allotment, never ever. So what were we to do? Who wrote the biological assessment? A fellow by the name of Jerry Stefferud. And then by law the assessment by the Forest Service has to be handed over to the Fish and Wildlife Service. Who is the chief fish biologist at the Fish and Wildlife Service? His wife, Sally Stefferud. Going back to government officials being in a conflict of interest position, and, incidentally, Jerry Stefferud is a member of the Center for Biological Diversity. His wife, I'm sure, is also. I can't prove that, but we proved in court that Jerry Stefferud was, and so we have two people in the Center for Biological Diversity implementing their own personal philosophical ideas through the government regulation process. It's absolutely absurd.

We sued in federal district court, the Arizona Cattle Growers sued in federal district court. We basically argued, how can the federal government in a biological opinion grant Mr. Chilton the right to avoid a felony if one of his cows stepped on a fish. Have you ever seen a cow step on a fish? They even claimed the cows ingested fish. How can the federal government give me the right to take a species and at the same time the U.S. Fish and Wildlife gain regulatory jurisdiction over every aspect of my grazing program, especially if the species isn't there? Thank goodness, United States District Judge Broomfield, ruled that, if the species isn't there, how can the U.S. Fish and Wildlife give me that right to kill the species and for that right make it not a felony and then, in turn, gain regulatory jurisdiction over my grazing.

Of course, the Fish and Wildlife Service and the Center for Biological Diversity appealed it on to the Ninth Circuit Court. I expected the worst out of the Ninth Circuit, but they came back 3 to 0, Judge Broomfield is right. How can Mr. Chilton be spared a felony for a species that wasn't there and then the U.S. Fish and Wildlife gain regulatory jurisdiction over every minute detail of how I grazed on the land. So the Ninth Circuit Court just wiped out the Fish and Wildlife Service. Thank goodness, the Bush Administration has fully implemented that decision. They cannot write a biological opinion unless they prove the species is there, and they can't gain regulatory jurisdiction unless the species is there. So it took out potential habitat as a basis for their regulatory powers. That was really a great victory.

The Center for Biological Diversity was pissed. They went out onto my ranch and they took pictures. They took nine pictures. They sent the pictures to the U.S. Forest Service and said, Mr. Chilton is abusing the land and we demand that his grazing permit be taken away from him, cancelled. You know, I paid $1.2 million for that ranch. That's like a bunch of jerks going out in somebody's front yard and saying, we don't like the way the paint is painted on the house. We're demanding that the city take your property. I mean, it was just outrageous. Obviously, I was angry. Finally, I sat down with the Forest Service and said, look, I had retained the premier, most recognized, most published rain scientist in the nation, Dr. Jerry Holechek, to come out on the ranch fifteen times and conduct monitoring. We did a riparian study with Dr. Fleming with the University of New Mexico, and we did a grazing capacity study with Dr. Galt and Dr. Holechek, and we did a soils study.

I went to the Forest Service and said, look, you've got to decide who you are going to be sued by. I am going to sue somebody, or the Center for Biological Diversity is going to sue. Who are you going to be sued by? If the Center for Biological Diversity sues you, it will be based on myth, misrepresentations, nonspecific site data, generalizations. If I sue you, I will have fifteen studies, a riparian study, a soils study, and a grazing capacity study. Now, who do you want to be sued by? Pretty soon the Forest Service and ourselves were the best of friends. They ruled in our favor and NEPA, they granted us a new permit.

The Center for Biological Diversity appealed the decision. The Forest Service rejected their decision, and then, in anger, the Center for Biological Diversity published a news release, sent it out to 160-some-odd news media organizations. It was the most obnoxious, misrepresentative, slanderous news release, and they attached 21 photos to it. They put it on their web site. They distributed it widely. Others picked it up and re-published it. Well, I found out about it, of course, because it was published in my local newspaper. Then I was really mad.

And so I talked with lawyers about what to do about it. I had some great lawyers. When I mention my great lawyers, they really are great, but Karen Budd is one of the greatest lawyers in the West. I want each of you to know how honored you are to have her speak to you today. She's the greatest and our true leader in property rights.

What was the case all about? I sued them for slander, defamation of character under the state of Arizona constitution and laws, and in state court at the county courthouse. We did not go to the federal courts. We'd lose. We went to the county courthouse and had a jury. The Center for Biological Diversity arrogantly showed up. One of the highlights in the testimony ties back to Mr. Cohen's comments.

What was I doing? Here I was suing people for lying, misrepresenting, slandering. Now my great, great uncle, Toles Cosper, when he drove a herd of cattle in 1888 to Arizona from Texas, he dealt with people differently. He was chairman of the first board of supervisors of Greenlee County and there was a guy, not everybody likes you, especially if you are the chairman of the board of supervisors. Well, he was in a bar in Clifton saying I am going to kill Toles Cosper. So he goes out and gets on his horse and he rides 75 miles to Toles' ranch. Can you imagine riding 75 miles horseback to go to a board of supervisors meeting? Well this guy rode 75 miles, but one of Toles' friends got around him without his knowledge, got to the ranch, ran in, and said, Toles, Toles, I can't remember the guy's name, is coming up to kill you. Toles, they say, without any emotion, went over, got his rifle off the wall, went out, got on his horse, rode down towards Clifton about a quarter of a mile, got up on a big bluff, and here came this guy after a while riding up. Boom! That was it.

Toles Cosper was deemed not guilty. It was self-defense.

In the trial, my dad was really quite angry. We had a video of him. He is ninety years old and he has been a rancher all of his life, and he said, you know, if it had been fifty years ago, he says, I would have taken these Center for Biological Diversity guys out and just beat the s…t out of them.

But what am I doing? In this day and age, I'm forced to go to the courts. If I hit one of them, I go to jail, not them. They argued that they, well, what they did was publish 21 photos. One picture of an area the size of this room was in The Wall Street Journal, incidentally. Those two cows were lying there, and the ground was about as bare as this room, and the caption was "California gulch completely denuded of forage." Our ranch allotment is 21,500 acres. Now, the size of this room isn't very representative, and there were several things wrong with the photo. First, it was on private property, and it wasn't even my private property. It wasn't on my grazing allotment. Secondly, these two cows were lying where a May Day Festival had been held for three weeks. Five hundred people, hundreds of cars and stuff had been driving around. We have pictures of dance bands and everything. But in the caption, the implication was that it was my cattle that caused the denuding and here it is, "California Gulch completely denuded."

Another photo was taken, and it was bare and looked like some muddy tracks, and it says, "Streams and springs trampled by cattle." I found the spot where they took the picture—now it is not easy on 21,500 acres to find the spot, but I found it—it was in the bottom of a dry lake. Dry lakes don't have grass on them, and there was some mud, and it was also on private property, not mine.

Another picture, just to give you an idea of how they go out and misrepresent, is, there was a little wash. We have washes in Arizona, not rivers, because there isn't much water. This dry wash has a spot in it that during the rainy season during summer that gets a little water and gets muddy. Cows go in and they step in this area. So the Center goes out and they take a picture. The picture is about the half the size of this table there, boom, and the caption is "Cattle stomping spring in Scribner Gulch."

Our technique of proving that the photographs were misrepresentative, did not represent the allotment, was to go out and find these spots and then take a picture to the north, east, west, and south, and show it to the jury and say, look, here is what they did. They implied that cattle are ruining the land, but this is what it looks like this way, this way, and this way. In fact, on the Scribner Gulch picture the Arizona Star, a newspaper—we call it the Red Star—said that the four pictures taken north, east, west, and south were "jungle-like." I mean, there was a lot of vegetation. So the misrepresentation was just awful.

I was deemed by the court to be a public figure, and, therefore, I had to prove malice. I had to prove they intentionally, purposefully, with evil mind misrepresented. They argued that they didn't misrepresent, that the pictures were substantially true, that, because they were involved in the administrative process and submitted the pictures to the federal government in their appeal that they had an absolute right to, an absolute privilege to say anything. They argued their First Amendment rights, and they argued the right to petition government.

High points of the trial were when my lawyer asked their entomologist a question. One of the people we sued, as well as the Center for Biological Diversity, was a Ph.D. entomologist. It drives me buggy—the fact that he paraded as reforming land in the west, eliminating grazing all across the west just absolutely made me so mad, because he was an Australian, not even an American citizen. It's just outrageous. Anyway, my lawyer asked him, what does the Center for Biological Diversity do? And he said, well, we're watchdogs. We are watchdogs for the public against the Forest Service. We're watchdogs for the public against the BLM, against the U.S. Fish and Wildlife. We are the watchdogs for the public. My lawyer asked, who is your watchdog? And he said, gee, I don't know. My lawyer says, the jury is your watchdog.

Another high point was when my wife was being questioned by the opposing attorney. What did Mr. Chilton say when he read this news release in the newspaper? She said, how specific do I have to be? And he said, I want to know the exact words. And she said, well, he used cowboy words. The jury chuckled.

Well, anyway, we won. They grossly misrepresented, they lied, and it's their modus operandi. We are very thankful for it. I'd do it again, but when you're a cowboy, you have to stand up. When you're an American, you have to stand up, and bottom line, grazing is good. All the science, eighteen studies, scientific peer-reviewed studies, peer-reviewed articles, show that light to moderate grazing is better for the land than no grazing at all. People just don't overgraze anymore. We all agree that overgrazing is bad and that what we're doing out there is really good. And I have great optimism for the future. Of course, you wouldn't be a rancher unless you had optimism.

I am reminded of the rancher sitting in front of the banker asking for a loan, and the banker asked him, have you had some good years? He said, oh yes, I've had three good years. He said, when were they? Oh, in 2003 and this year and next year.

So you've got to be optimistic. You've got to fight and you've got to do what is right. Remember, cowboys ride for their brand, and when the going gets tough, they cowboy up.

***

Notes:

(1) NEPA - National Environmental Policy Act. The reference is to full-scale review of environmental impact under the act.

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