Barnum Timber says designation based on insubstantial evidence

By MATEUSZ PERKOWSKI

Capital Press

A California timber company has asked a federal appellate court for clearance to sue the U.S. Environmental Protection Agency over a regulation that allegedly diminished the value of its property.

The Barnum Timber Co. filed suit against the EPA in 2008 because a stream along the firm's property near Eureka, Calif., was designated by the agency as an "environmentally impaired water body."

The firm claimed the designation was based on insubstantial evidence, but the lawsuit was thrown out of court because a federal judge decided Barnum Timber lacked standing in the case.

According to the judge, the company failed to demonstrate EPA had caused an injury, since the additional forestry regulations prompted by the designation were enacted by the state of California.

Barnum claimed that EPA's "environmentally impaired water body" designation decreased the property's value independently of forestry regulations, but the judge said that allegation was not sufficiently documented.

The company has appealed that ruling to the 9th U.S. Circuit Court of Appeals, which heard oral arguments in the case on March 11.

Damien Schiff, an attorney representing Barnum Timber, said the company should not be prohibited from asking a federal court to review the designation -- particularly since a California state court was previously found to lack jurisdiction.

The company was harmed because EPA's designation directly caused the property to be subject to California regulations, Schiff said.

The decreased property value allegation was supported by declarations from two experienced foresters, which is enough to show the company suffered an injury and had standing in the case, he said.

Andrew Mergen, an attorney representing the EPA, said the original court ruling correctly dismissed Barnum's claims.

The company can't sue EPA for California regulations, and it failed to pinpoint financial damages, he said.