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By Ray Stern
By New Times Staff
By Stephen Lemons
By Chris Parker
By Monica Alonzo
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By Robrt L. Pela
"Chilton just wanted to fight everything tooth and nail," Stefferud says.
They were paranoid, but, as the adage goes, that didn't necessarily mean people weren't out to get them.
The Forest Service biologist who supervised the chub studies, Stefferud, has donated money to the Center over the years, as he admits. (New Times found records indicating he gave at least $200 in 2002 alone.) "There's nothing wrong with contributing to the Center," he says. "For a long time it was on the United Way form and you could contribute as part of your paycheck. A lot of employees did it that way." His wife Sally also worked on the case as a senior fish biologist for U.S. Fish and Wildlife.
Meanwhile, another Forest Service employee penned a report claiming that the Chiltons' ranching was likely to harm the Lesser Long-Nosed Bat, another endangered species. That employee is married to a biologist who also donated to the Center -- a man who even co-authored a research paper on ponderosa pine with one of the Center's founders, Kieran Suckling. (Since no one has ever been able to prove that the bat in question lives on the Chiltons' allotment, that issue eventually went away.)
To the Chiltons, those ties were clear evidence that the government was not a neutral party, simply acting as mediator between their interests and those of the environmentalists. Instead, the government and the environmentalists were one and the same.
"They knew they could turn in sloppy science, and if it advanced the agenda, no one would challenge it," Sue Chilton says.
But the Chiltons, wealthy enough to hire their own consultants, were only too happy to make such challenges.
The question of whether the Forest Service would renew their grazing permit was still up in the air when Fish and Wildlife issued its recommendation in 2001: that ranching would illegally harm the chub unless nearly two miles of the gulch were fenced to keep cattle off.
The Chiltons responded with a 51-page letter. That part of the gulch was dry at least half the year, they wrote, again and again, sometimes in bold type, sometimes in all caps. The Fish and Wildlife report, they screamed, "NEVER ONCE MENTIONS" that the entire area to be fenced dries up annually -- with or without cattle -- because of weather conditions. Even without grazing, the chub were going to die.
David Harlow, then Fish and Wildlife's field supervisor in Phoenix, insists that his decision to overrule the draft report was not unusual, although Jerry Stefferud disagrees.
Regardless, Harlow's decision was dramatic: Continuing to graze along the gulch, he wrote, overruling his agency's previous report, would not harm the chub.
The Forest Service concurred, reissuing the Chiltons' permit without ordering any more fencing.
And that's when the Center appealed, putting up a Web link to the photos it had taken on the allotment.
And that's when Jim Chilton sued the group and three of its employees for libel.
Cheerful and vaguely rumpled, attorney Kraig Marton has the friendly lumber of a bear in a Disney cartoon. But once he starts talking about a case, it's clear he's the sharpest guy in any room.
Chilton was annoyed by the whole press release. But Marton, his new lawyer, understood that the real issue was the 21 photographs. To win any libel suit, he'd have to demonstrate that, even if the photographs were taken on the allotment, they did not reflect its actual condition, accurately or fairly.
A decision by Pima County Superior Court Judge Richard Fields made things even harder. Because Chilton's wife is chairman of the Arizona Game and Fish Commission, and because the Chiltons have been so outspoken on ranching issues, Fields ruled that they were public figures.
That meant Marton would have to prove that the Center didn't just get things wrong, but that it'd done so with "actual malice." There were two possibilities, legally: Prove the Center lied, or demonstrate it acted recklessly, with no regard for the truth.
As Marton researched, he began to see how he could make a case for malice. Chilton explained that four of the photographs weren't even taken on his allotment. They showed his private land, which borders the allotment, and his neighbor's. But not the allotment itself.
And that was only the tip of the iceberg.
Marton and Chilton drove the length of the acreage and determined where each and every photo was taken -- a long, slow process that, eventually, became a PowerPoint presentation and the heart of their case.
As they traversed the ranch, camera in hand, it became clear that the Center photographers had picked the worst spots they could find and focused their shots tightly, Marton says.
And so for each photograph the Center offered, the lawyer took a second photograph. One that showed a bigger, more complete picture.
"Look at this," Marton says, presenting one of the Center's photos of a patch of earth. "They have this captioned, 'Spring trampled to mud.' Well, they looked down. Just look up!"
Then he shows his photograph, a panoramic view of the same spot. "Trees, dense foliage, the land was beautiful. And they just show you this picture!"
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