In January 2005 in the Arizona Superior Court for Pima County, a jury found that the Center for Biological Diversity (“CBD”) knowingly and maliciously defamed a local rancher, Jim Chilton, and CBD was forced to pay actual damages for economic losses of $100,000 and punitive damages of $500,000.
CBD asked the presiding judge, the Honorable Richard Fields, to overturn the jury verdict, but on June 5, 2005, Judge Fields affirmed the verdict, finding that the “jury in the instant case was intelligent, attentive to detail, and outwardly thoughtful.”
CBD then hired Davis Wright Tremaine, a Seattle-based national firm with over 500 lawyers, to take the appeal of the case to the Arizona Court of Appeals. The hiring of a major firm like Davis Wright Tremaine represents another blow to CBD’s credibility considering CBD’s public comments about Mr. Chilton after the initial jury loss: “We really feel victimized by a wealthy banker who can afford to hire a large legal team to nit-pick you to death.” Such environmental groups as the Sierra Club, Forest Guardians, Arizona Wildlife Federation, and the Maricopa Audubon Society filed supporting “amicus” briefs to overturn the jury verdict.
In December 2006, a three judge panel of the Arizona Court of Appeals unanimously upheld the jury verdict of malicious falsity and punitive damages in a written opinion. The Arizona Supreme Court declined CBD’s request to hear the case, essentially affirming the result. The Arizona Supreme Court ordered the opinion not be published, so it is not binding precedent for future cases, but it is unclear why the Supreme Court “depublished” this unanimous opinion.
The Court of Appeals’ opinion upheld the finding of “actual malice” against CBD – meaning knowing and willful published falsity or reckless disregard for the truth. The Court of Appeals found there had been “clear and convincing evidence” of CBD’s “actual malice” justifying punitive damages. The court in fact said just one photograph published by CBD alone proved its maliciously false defamation of Mr. Chilton. This photograph, labeled at trial as Photo 18, falsely depicted Mr. Chilton’s cow grazing practices causing harm to the environment.
You can see that very image, labeled Photo 18 from the trial immediately below.
Here is what the appellate court stated about Photo 18, which CBD linked to in a press release:
“We conclude the jury could have found actual malice by clear and convincing evidence based solely on photograph #18. This photograph, taken of private land, depicts Ruby Pasture and the caption reads, ‘California Gulch completely denuded of forage and severely compacted’ [as a result of Jim Chilton’s ranch’s grazing practices]. The photograph shows two cows lying on a dry and barren field, which, viewed in the light most favorable to Chilton’s defamation claim, see id., clearly suggests that Chilton’s cattle solely created the damage.
Significantly [the CBD photographer] who took the photograph, testified he had been to a May Day festival at this very location about a week and one-half to two weeks before he took photograph #18. And a resident of the area testified that about five to six hundred people were at that festival, with people coming and going throughout the festival, some camping on the land, and that the festival had lasted at least three weeks. Chilton also presented evidence that several hundred cars, all-terrain vehicles, and recreational vehicles had also used this location during the festival. Because photograph #18 insinuates that Chilton’s cows caused the damage, and because [the CBD photographer] took photograph #18 after being present at the festival, a reasonable jury considering all the evidence could have found sufficient evidence of actual malice [when CBD chose to publish this photograph to attribute the damage to the environment to Chilton’s grazing practices].”
The case against CBD was not limited to a single photograph, however. Mr. Chilton’s website features a series of misleading pictures that CBD published to attribute damage to the environment to Mr. Chilton’s grazing practices. Mr. Chilton’s website also then features the pictures that Mr. Chilton provided to the jury that showed critical context and exposed CBD’s photos as misleading or outright false. Those pictures can be found here.
It should be noted that CBD has failed to apologize to Mr. Chilton and his family for their harmful and malicious defamations.
CBD Policy Director Kierán Suckling comments to High Country News in February 2005, www.hcn.org/issues/292/15300.
