Group Seeks To Overturn Jury Verdict

Environmental center says it did not libel rancher

Howard Fischer, Capitol Media Services, Sept. 6, 2007, 12:00 AM

An environmental group is asking the state's high court to overturn a jury's verdict that it defamed a southern Arizona rancher - and required it to pay him $600,000.

Attorneys for the Center for Biological Diversity contend that the group cannot be held liable because the statements and photographs at the center of the dispute were substantially true. That, they argue, means they were not libelous.

The Tucson-based group also contends that its statements are legally privileged.

If nothing else, the organization is arguing that the $500,000 in punitive damages awarded to the rancher, James Chilton, are excessive, particularly because it is a non-profit organization.

But the organization has an uphill fight: The verdict - and the size of the award - was not only upheld by a trial judge, but the state Court of Appeals refused to set aside the award.

The fight surrounds the decision by the Forest Service in 2002 to give Chilton a 10-year renewal of his grazing permit for 21,500 acres of public land. The Center for Biological Diversity appealed that decision at the time, posting a link on its Web site to that appeal along with 21 photographs of what they claimed were denuded grazing land

It was those photographs - which, according to the center, showed the damage caused by overgrazing - that caused the biggest stir.

At the trial, Chilton's lawyer, Kraig Marton, presented his own photographs that depicted a wide-angle view of the scene and proved, he said, that the center's own photos were deliberately misleading

Kieran Suckling, the organization's policy director, said the photographs cannot be judged by themselves because they were part of the center's appeal to the Forest Service challenging the decision to leave cattle on the land. That, he said, means that the photos were absolutely protected by the First Amendment.

But Appellate Judge William Brammer said the organization's attorneys did not properly raise those issues at the 2005 trial in Pima County Superior Court.

As to the rest of the libel claim, Brammer said jurors heard from both sides and concluded the information was false or at least misleading. In fact, the judge noted, the group admitted that four of its 21 photographs do not even depict the public lands at issue.

Suckling said the fact that some of the photos were taken of Chilton's cattle on private land - not land at issue in the permit - is irrelevant.

As to the punitive damages, the appellate court said there was evidence of malice on the part of the center and Andrew Schneller, the former staffer who took most of the photographs.

Brammer specifically cited one photo of two cows on private land "lying on a dry and barren field," with a caption stating that the area had been "completely denuded."

The judge said the clear implication was that all the damage had been caused by Chilton's cattle. However, he noted that there had been a three-week-long festival on the land that had ended a couple of weeks before. Chilton also presented evidence that there were cars and all-terrain vehicles at the site.

Brammer said because Schneller had been at the festival, a jury could conclude he had "actual malice" in taking the photos as proof of damage by Chilton's cattle.

As to the size of those punitive damages, the appellate court said there is no evidence the organization cannot pay the award.

In fact, the organization's 2005 annual report shows revenue of $3.5 million - most of that from grants and membership - and expenses of $2.4 million, even after center paid $500,000 of the award after last year's verdict; the $100,000 balance is covered by insurance.

The high court is set to review the case Sept. 25.

The case is Chilton v. Center for Biological Diversity (CV 07-0049 PR).

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