Quote of the Day - Deliberate with caution, but act with decision; and yield with graciousness, or oppose with firmness.
Farmers v. FishCalifornia ranchers, farmers and loggers sued the California Fish and Game Commission this week over the state’s protection of Coho salmon in northern California rivers. The suit claims that the CFGC lacked adequate information before listing the Coho as endangered and threatened and that the state regulations are duplicative of federal regulations.
Here’s my question: From a moral or ideological standpoint, when do we elect to enact protections for species that can’t speak for themselves? Do we wait for proof beyond a reasonable doubt that the species is endangered or clear and convincing evidence of threat or even a lower standard? Which party should bear the burden?
One possibility, although controversial, is to adopt a "precautionary approach" which among other purposes aims to ensure the sustainability of species while the threat is determined. The precautionary approach shifts the burden to the party whose activity may cause harm to prove that serious harm will not occur.1 The precautionary approach also resolves differences over the quality or quantity of research and data in favor of the conservation measure.2
Transferring the burden of proof to the ranchers and farmers to prove that their activities don’t harm the Coho seems to go against a certain intrinsic notion of fairness inherent in our adversarial legal system. Although “innocent until proven guilty” is a criminal mantra, I suggest such ideals influence other realms as well. A precautionary approach leaves the ranchers and farmers in a position which they are likely ill-suited to overcome. They now have to prove that their activities are harmless, while the state never had to prove actual harm.
This imbalance leaves me torn on a personal level. I like to think of myself as concerned about the environment and one who makes reasonable efforts to protect it. Plus, have you ever had fresh-grilled coho salmon with a great bottle of pinot noir? One of life’s great combinations. Admittedly, I come from a family of farmers (as well as a lawyer) and live in farm country. It's difficult to imagine placing such a burden on the backbone of our nation’s food supply.
What’s a farm boy who loves salmon supposed to do?
1 David Freestone, The Conservation of Marine Ecosystems Under International Law, in International Law and the Conservation of Biological Diversity 106 (Michael Bowman & Catherine Redgwell eds. 1996); Marcos A. Orellana, The Law on Highly Migratory Fisk Stocks: ITLOS Jurisprudence in Context, 34 Golden Gate U.L. Rev. 459, 461 (2004).
2 Tim Eichenberg & Mitchell Shapson, The Promise of Johannesburg: Fisheries and the World Summit on Sustainable Development, 34 Golden Gate U. L. Rev. 587, 609 (2004).