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Earthrise Defends Public Participation in Federal Court

March 17, 2016

  • Earthrise alum Laura Hagen, client Don Mench and Earthrise alum Nick Lawton
    Earthrise alum Laura Hagen, client Don Mench and Earthrise alum Nick Lawton

Earthrise received a welcome Christmas present from the Ninth Circuit on December 24th, when the court ruled in our favor in a long-running case.

In one of the few cases in which Earthrise is on the defense side, the clinic stepped in to represent a Mt. Hood neighborhood group and its officers who were sued by an unscrupulous developer. The Mt. Hood Corridor “Citizen Planning Organization” (CPO) had filed comments during a public comment period suggesting that Clackamas County deny land use permits for a development that would adversely affect fish habitat on the Sandy River. In what is commonly called a Strategic Lawsuit Against Public Participation (SLAPP), the developer filed suit against the neighborhood group and individually-named officers in federal district court arguing that the defendants had intentionally tried to destroy the developer’s business and violate his civil rights.

SLAPP suits aim to intimidate their targets, using the expense and inconvenience of litigation to discourage citizens from exercising their rights to participate in government decision-making on issues that have significant impacts on the environment. Many Oregon counties encourage formation of CPOs to promote public participation in land use decisions across the state. A successful suit against a CPO for simply submitting comments had the potential to chill public participation throughout Oregon.

Earthrise took advantage of an Oregon statute designed to discourage SLAPP suits, winning a “special motion to dismiss” the developer’s state claim and later successfully moving for summary judgment on the plaintiffs’ civil rights claims (with then Earthrise student Nick Lawton doing an excellent job in the oral argument). The Ninth Circuit had little difficulty in summarily dismissing the developer’s appeal.

Though Earthrise was in the unique position of defending against a lawsuit, this case nonetheless represented a significant win for the environment and public participation.

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