In December 1993 several environmental radicals, led by a young man named Kieran Suckling, gathered in New Mexico and incorporated the Southwest Center for Biological Diversity.
They had $47,900 in the bank, ambitions to put every logger, rancher, and miner in the region out of business, and a magic wand for the purpose: the Endangered Species Act (ESA).
Since the 1978 U.S. Supreme Court decision in the snail darter case stopped Tennessee’s $100 million Tellico Dam, the Endangered Species Act has trumped economics, property rights, and all else. The high court fashioned a virtually omnipotent bludgeon in a single sentence of its ruling: “Congress intended endangered species to be afforded the highest of priorities.”
‘Not About Animals, About habitat’
In truth, the Endangered Species Act is not about plants and animals; it’s about habitat. That means land and water—all of it, public and private. If you harm the habitat of an endangered snake in your own backyard, under ESA’s Section 11(b), you could get socked with a year in federal prison and a $50,000 fine for each violation. In effect, the Supreme Court’s ESA ruling said, “Congress intended productive people to be afforded the lowest of priorities.”
Green groups don’t have to sue people directly to destroy them. They can overload the U.S. Fish and Wildlife Service (FWS) with hundreds of petitions to list every plant and animal in an area as “endangered,” and then, if the agency is slow to consider them for listing, sue the agency, which then typically settles the suit by listing the species in question outside of the normal scientific review process. The groups then sue FWS for failing to adequately protect the habitat, whereupon FWS designs a habitat protection plan that ends up limiting people’s access to and use of both their own and public lands. Often this results in putting people out of business.
Suckling and his radicals pioneered this model and have feverishly filed citizen lawsuits, thus significantly slowing development throughout the Southwest.
By 1999, they had moved to Tucson, Arizona and had more than $800,000 in Rockefeller and Pew foundation dollars in the bank. The Center for Biological Diversity (CBD) morphed into a green litigation powerhouse.
CBD’s power is money. Ignoring its income from successful lawsuits, since 1999 CBD received 386 grants from 128 foundations totaling $21.9 million, with current assets of $13.7 million. Kieran Suckling’s annual compensation is above $206,000.
Lobbyists Make Mistake
Suckling’s well-heeled lawsuit factory remained impervious—until it messed with fifth-generation rancher Jim Chilton.
Chilton grew up on Arizona ranches and went to Arizona State University, where he earned degrees in economics and political science. Chilton then joined the staff of late U.S. Sen. Carl Hayden (D-AZ) and later had a successful career in municipal financing. In 1979 he became a full partner in the Chilton family ranching business.
Jim and his wife Sue started their own ranch and home in 1987 near Arivaca, Arizona. They prospered and purchased the neighboring Flying X ranch, along with the grazing permit for the 21,500-acre Montana Allotment in Coronado National Forest.
The Chiltons were registered cooperators of the Natural Resources Conservation Service and gained respect for outstanding land management—grazing rotation, increasing native perennial grasses, wildlife protection, and inviting academicians to conduct monitoring, utilization, and production studies on-site.
Then somebody filed multiple complaints with the Forest Service claiming the Chiltons were “destroying the land.” The complaints came from CBD, trying to kill the Chiltons’ pending grazing permit renewal.
Despite CBD’s protest, the Forest Service renewed the Chiltons’ grazing permit. CBD filed an administrative appeal of FWS’ decision and lost. Then CBD made a fatal error: It posted an Internet “news advisory” of 21 photographs of “Chilton’s devastated range.” It wasn’t.
Longtime Chilton friend, biologist, and attorney Dennis Parker, and Chilton’s cousin Gerald, also a lawyer, told Jim there was a defamation suit itching to be filed there. Jim agreed, and they filed a libel suit against CBD.
CBD hired a noted trial attorney in a big Phoenix law firm, Robert Royal, to lead its case. Chilton added Kraig Marton, a prominent attorney from another large Phoenix law firm.
At trial, Marton showed four key Internet photos of “Chilton’s devastation” weren’t his land at all, but a plot known as “Marijuana Flat,” which was trampled by mobs of cavorting greenies during a nature indulgence. A CBD staff member took the four “Chilton’s devastation” pictures from his own campsite, proving Chilton’s case. The jury awarded Jim Chilton $100,000 in actual damages and $500,000 in punitive damages.
CBD appealed the decision, engaging Thomas Burke from San Francisco. Burke’s argument essentially suggested CBD had a First Amendment right to lie. They lost.
Appealing the case to Arizona’s high court, CBD hired former Arizona Supreme Court Justice Stanley Feldman to ask his former colleagues to hear the case. Arizona’s Supreme Court declined to hear the appeal, leaving the lower court’s ruling as the final word. Case closed.
The Center for Biological Diversity’s liability insurance paid the $100,000, and the group paid the $500,000.
Perhaps in the hope its assets will be shielded from award or seizure should future courts rule against the CBD, the group reincorporated in 2012. Its IRS Form 990 now inconspicuously lists Center for Biological Diversity Holding Company, Inc.
Chilton’s wrap: “I wanted to beat those liars, and I did.”
America owes you a great deal, Jim Chilton.
Ron Arnold ([email protected]) is a free-enterprise activist, author, and commentator.