Amicus Curiae Brief — Maggy Hurchalla, Petitioner v. Lake Point Phase I, LLC, et al.

Supreme Court briefOct 14, 2020

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No. 20-332

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MAGGY HURCHALLA,

Petitioner,

LAKE POINT PHASE I, LLC &

LAKE POINT PHASE II, LLC,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari To

The Fourth District Court Of Appeal Of Florida

---------------------------------♦--------------------------------BRIEF FOR AMICI CURIAE BULLSUGAR.ORG,

CONSERVATION ALLIANCE OF ST. LUCIE

COUNTY, FLORIDA WILDLIFE FEDERATION,

FRIENDS OF THE EVERGLADES, MARINE

RESOURCE COUNCIL OF EAST FLORIDA,

MARTIN COUNTY CONSERVATION

ALLIANCE, SMALL WORLD ADVENTURES,

LLC, THE PEGASUS FOUNDATION, AND

WATERKEEPERS, FLORIDA IN SUPPORT OF

THE PETITIONER MAGGIE HURCHALLA

---------------------------------♦--------------------------------RICHARD GROSSO, ESQ.

RICHARD GROSSO, P.A.

6919 W. Broward Blvd., Mailbox 142

Plantation, FL 33317

954-801-5662

grosso.richard@yahoo.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

SUMMARY OF THE ARGUMENT .....................

ARGUMENT ........................................................

THE

COURT

SHOULD

GRANT

CERTIORARI TO RECOGNIZE THE

INHERENTLY DEBATABLE NATURE

OF SCIENTIFIC CONCLUSIONS ............

a. The State Court Failed to Recognize

the Complex, Opinion-Based Nature of

Scientific / Environmental Facts .........

b. Due to Their Inherently Uncertain

and Debatable Nature, Good Faith

Statements Regarding Disputed Scientific Conclusions of Public Concern

Cannot Constitute Tortious Falsehoods .................................................... 11

The Modes of Communication the

State Court Deemed Improper Are

Wholly Legitimate, Necessary and

Protected Methods of Petition Concerning Environmental Conclusions ..... 21

d. Citizen Speech on Scientific and Environmental Matters is Essential to

Adopting and Implementing Public

Policy ................................................... 22

CONCLUSION..................................................... 26

TABLE OF AUTHORITIES

Page

CASES

American Oceans Campaign v. Daley,

183 F. Supp. 2d 1 (D. D.C. 2000) .............................13

Baltimore Gas & Elec. Co. v. NRDC,

462 U.S. 87, 76 L. Ed. 2d 437,

103 S. Ct. 2246 (1983) .............................................14

Ecology Center v. Castaneda,

574 F.3d 652 (9th Cir. 2009) ....................................15

Ethyl Corp. v. U.S. Envtl. Prot. Agency,

541 F.2d 1 (D.C. Cir. 1976) ................................ 12, 13

Friends of Congaree Swamp v. FH,

786 F. Supp. 2d 1054 (D. S.C. 2011) ........................15

Greenpeace Action v. Franklin,

14 F.3d 1324 (9th Cir. 1992) ....................................16

Lands Council v. McNair,

537 F.3d 981 (9th Cir. 2008) ....................................16

Lead Indus. Ass’n v. Envtl. Prot. Agency,

647 F.2d 1130 (D.C. Cir. 1980) ................................13

Les v. Reilly,

968 F.2d 985 (9th Cir. 1992) ....................................13

Marsh v. Oregon Natural Resources Council,

490 U.S. 360 (1989) ........................................... 12, 15

Milkovich v. Lorain Journal Co.,

497 U.S. 1 (1990) ................................................. 9, 11

Nat’l Fisheries Inst. v. Mosbacher,

732 F. Supp. 210 (D. D.C. 1990) ..............................14

iii

TABLE OF AUTHORITIES—Continued

Page

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ........................................... 24, 25

Oceana, Inc. v. Evans,

384 F. Supp. 2d 203 (D. D.C. 2005) ................... 13, 14

Oregon Natural Desert Ass’n. v.

U.S. Forest Serv.,

957 F.3d 1024 (9th Cir. 2020) ..................................16

Rapanos v. United States,

547 U.S. 715 (2006) .................................................11

Resolute Forest Products et al. v.

Greenpeace Int’l, et al.,

2019 U.S. Dist. LEXIS 10263 *;

2019 WL 281370 (U.S. District Court,

N. Dist. Cal., Jan. 22, 2019 ................................ 16, 20

Resolute Forest Products, Inc., et al.,

v. Greenpeace International, et al.,

302 F. Supp. 3d 1005 (N. D. Cal. 2017) ........... passim

Snyder v. Phelps, 562 U.S. 443 (2011) ........................11

Spelson v. CBS, Inc.,

581 F. Supp. 1195 (N.D. Ill. 1984),

aff ’d, 757 F.2d 1291 (7th Cir. 1985) ........................12

W. Watersheds Project v. Salazar,

766 F. Supp. 2d 1095 (Dist. Montana 2011) ...........16

STATUTES

Water Resources Development Act (WRDA) of

2000, Pub. L. 106-541, § 601(b), 114 Stat.

2572, 2680-81 (2000) .................................................9

TABLE OF AUTHORITIES—Continued

Page

REGULATIONS

33 C.F.R. Part 385 .......................................................10

OTHER AUTHORITIES

Surface Mining Control and Reclamation Act of

1977, Report of the Comm. on Interior and

Insular Affairs, House of Rep., Together with

Additional, Concurring, Separate and Dissenting Views to Accompany H.R. 2 (Including

the Congr. Budget Office Cost Estimate), April

22, 1977 ...................................................................23

https://www.merriam-webster.com/dictionary/benefit ......20

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amici

respectfully submits this brief amicus curiae in

support of Petitioner Hurchalla.1

Bullsugar.org (“Bullsugar”) is a Florida nonprofit membership organization. Its mission is to

educate the public about water quality and related

environmental issues, and advocate for policies that

further this mission. Bullsugar informs citizens and

public officials about threats to clean water, and

advocates for policies to improve water quality. It

advocates for the governmental protection of wetlands

because of the flood protection, water quality, habitat

and other functions they provide.

Waterkeepers, Florida is a not-for-profit organization composed of all 13 Waterkeeper organizations

working in Florida to protect and restore water

resources across over 45,000 square miles of watershed

supporting millions of Floridians. On behalf of its

members, Waterkeepers Florida informs the public

Pursuant to Rule 37.2, all parties with counsel listed on the

docket have consented to the filing of this brief. Counsel of record

for all listed parties received notice at least 10 days prior to the

due date of the Amicus Curiae’s intention to file this brief.

Pursuant to Rule 37.6, Amicus Curiae affirm that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

and communicates with public officials on public policy

matters impacting human and ecological health.

Florida Wildlife Federation, Inc. (“FWF”) is a

Florida non-profit corporation, with approximately

60,000 members and supporters in Florida. FWF

pursues its mission to conserve the natural resources

of the state, advance environmental education, ethical

outdoor recreation, and sustainability by advocating

before governmental bodies and litigating in state and

federal court. FWF and its members often voice

opinions as to the environmental impacts of proposed

actions. FWF frequently relies on technical and

scientific information produced by third parties to

support its positions.

Friends of the Everglades, Inc. (“Friends”) is a

Florida non-profit corporation which pursues its mission to preserve, protect, and restore the Everglades by

advocating before government bodies, including the

courts, for compliance with environmental laws.

Friends’ members have environmental, recreational,

property, economic, health, and aesthetic interests in

the outcome of this advocacy. Friends has initiated

litigation or intervened at many levels of governmental action and relies on technical and scientific

information gleaned from legitimate sources, much of

which is disputed and debated.

Martin County Conservation Alliance is a

Florida not-for-profit organization, which, on behalf of

its members, informs the public and communicates

with public officials on public policy matters affecting

human and ecological health and the quality of life in

their communities.

Small World Adventures, LLC is a Coloradobased adventure travel company that specializes in

whitewater kayaking trips in the United States and

Ecuador. SWA is dedicated to the outdoors, to river

conservation, and to spreading the love of whitewater

kayaking. Access to wild places is crucial to its

business model. Through its commitment to 1% for the

planet, The Ecuadorian Rivers Institute, American

Whitewater, and other non-profit conservation organizations Small World supports and encourages the

protection of wild places and supports citizen advocacy

in furtherance of that mission.

The Conservation Alliance of St. Lucie

County has dedicated itself to the preservation and

protection of land and water resources, including

native Florida ecosystems and habitats, flora and

fauna. It advocates for these precious areas to be

protected. The Alliance has experienced this chilling

effect, related to its public objections to a bridge project

in St. Lucie County.

Marine Resource Council of East Florida is a

Florida non-profit organization dedicated to saving

Florida’s water quality for public enjoyment. It

accomplishes its mission by engaging residents in

science, restoration, and education and motivates

them to participate in the democratic process.

Pegasus Foundation is a not-for-profit

Massachusetts corporation with a mission to improve

animal welfare through grant-making and education

in the United States, the Caribbean, on Native

American lands, and in Africa. In Florida, the

Foundation helps homeless and abandoned dogs and

cats with medical needs. It advocates for better

services for animals and for preserving critical wildlife

habitats. The Foundation is currently advocating to

stop ongoing pollution that is harming the Indian

River Lagoon and its human and animal inhabitants.

Participation in environmental policy issues is critical

to the goals of the Foundation.

As stakeholders who regularly advance their

positions by speaking to and before governmental

bodies and courts, all amici have substantial

experience with, and important perspectives about

communications with public officials regarding

complex, debatable, and disputed scientific matters

like those at issue in this case.

Amici represent the very type of civic-minded

citizens whose communications to government and

about governmental policy will now be stifled by the

rulings and reasoning of the court in this matter. They

have great interest in preserving the rights of citizens

to communicate with their public officials about

matters of public policy to protect natural resources

and safeguard public health. Their communications

with public officials would all but cease if they face

legal liability for good faith statements made to

government decision-makers about scientific matters.

The precedent for tort liability set by the court’s

decision will effectively silence the voices of citizens

who are exercising their fundamental rights to speak

on behalf of a clean, healthy environment.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

The Court should grant certiorari to remedy the

court’s error in failing to distinguish between

debatable statements about scientific conclusions and

those concerning objectively verifiable facts. Statements about whether a study is adequate to document

a conclusion (in this case whether a proposed mining

pit would benefit the environment)2 are of an

inherently different character than those “facts” which

are, by their nature, “objectively verifiable.”

Statements like the Petitioner’s in this case, about

a debatable scientific issue, have a unique character.

Reflecting analysis that is inherently subject to debate

and uncertainty, they are more opinion than objectively verifiable fact. They are often points of good faith

debate between citizens, industries, and government.

Such debates play out constantly between academics,

scientists, and interest groups, as well as before

federal, state, and local governments, administrative

law judges, and state and federal judges. The judicial

branches have recognized the scientific uncertainties

inherent to scientific and environmental disputes, and

that such disputes are more appropriately resolved in

scientific and non-judicial forums, rather than by

This is the “false” statement the court below deemed

competent to support the jury award against the Petitioner.

judicial tort litigation. A citizen should not be liable for

having uttered an actionable “falsehood” if an agency,

law judge, court, or jury “finds” it disagrees with a

complex scientific or technical statement the citizen

asserts honestly and in good faith while seeking to

influence government.

If citizens can be liable for actionable “falsehoods”

for their good faith, debatable statements about

complex, scientific issues, legitimate citizen input

and participation in government environmental and

human health decisions will cease. The exercise of

First Amendment rights will be unavailable to most

citizens.

The Court should grant certiorari to address the

state court’s rulings that label improper and malicious

methods and circumstances of public speech that are

common and necessary to the exercise of First

Amendment rights relative to such matters. The Court

should address whether a citizen with superior

knowledge of complex issues acts improperly when

asserting her views (but does not explain the other side

of the debate) outside of a public hearing to her less

informed representatives and urges them to adopt

them as their own. Particularly in the context of

complex scientific, engineering and environmental

conclusions, such caveats and limitations on public

speech are unconstitutional.

---------------------------------♦---------------------------------

ARGUMENT

THE COURT SHOULD GRANT CERTIORARI TO

RECOGNIZE THE INHERENTLY DEBATABLE

NATURE OF SCIENTIFIC CONCLUSIONS

a. The State Court Failed to Recognize the

Complex, Opinion-Based Nature of Scientific /

Environmental Facts.

The court below found Hurchalla liable for two

statements in an email she sent to her elected

representatives:

the [So. Fla. Water Management Dist.] staff

continued to suggest some vague storage

value but changed the emphasis to the

[stormwater treatment area] that would be

built on site as the completion of the project in

20 years. A study was to follow that

documented the benefits. . . . That study has

not been provided. [ . . . ]

Neither the storage nor the treatment

benefits have been documented.

Cert. Petition, pgs. 7-8.

The court ruled these statements concerning the

lack of “documented” project “benefits” are not

protected by the First Amendment.3 The court instead

deemed them “competent substantial evidence” that

the jury could have believed “clearly and convincingly

proved that Hurchalla demonstrated actual malice . . .

Cert. Pet. at p. 13.

by making statements she either knew were false or

with reckless disregard as to whether they were false.”4

The court divined that the jury could have found the

statements to be “false” because Hurchalla was

aware of the existence of a report that concluded

environmental benefits would result from the project.5

However, Hurchalla testified (and so did an

expert) that the preliminary report’s conclusion lacked

required peer review, and that more study was

required to document the claimed benefits.6 The

decision ignored the sentence in the email, where

Hurchalla explained, “[t]here does not appear to be any

peer review by the CERP team to verify benefits from

the rockpit.”7 Hurchalla’s explanation giving the

context of the statements was irrefutably true.8

But even if the issue was whether the storage or

treatment had been documented, the very nature of

Id.

Cert. Pet. at p. 20.

CERP is the acronym for the Comprehensive Everglades

Restoration Plan, established by Congress to protect and restore

the Florida Everglades, and administered jointly with the State

of Florida. Cert. Pet. Cert at p. 8. The Petition for Certiorari

explains that Ms. Hurchalla was referring to a peer reviewed

study performed by a team administering CERP, and stating her

view (corroborated by an expert witness at trial) that the

preliminary, limited analysis done for the mining pit did not

document environmental benefits. Cert. Pet. at pp. 3, 8 and 9.

Because an authoritative study of the mining project’s

benefits that was to be conducted by the CERP team had not been

done. Cert. Pet. at pgs. 8, 19-20.

that question is a matter of inherently debatable and

subjective judgment, not an objectively verifiable fact.9

Whether the subject report “documented” environmental “benefits” of the mining pit is a subjective

opinion that is protected by the First Amendment. It is

not an objectively verifiable fact10 that can support a

tortious falsehood claim.

The statements the court below deemed

competent to support a jury’s presumed finding that

Ms. Hurchalla lied were grounded in the lexicon of

this scientific/environmental field generally and the

Comprehensive Everglades Restoration Plan (CERP)

specifically. Hurchalla’s statement, which she

reasonably believed to be true, was far more in the

nature of an opinion than pure fact. Her assertion that

no study “documented” the claimed water resource

benefits of the mining pit reflected her view that the

report submitted by Lake Point was preliminary not

peer-reviewed as part of the formal joint federal-state

CERP planning process11 and used selective or flawed

Cert. Pet. at p. 15.

In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the

Court ruled that the difference between opinion and fact is that

the latter is a statement that is provable as false on the basis

of objective evidence. Id. at 19, 21-22. The Court held that an

allegedly defamatory opinion on a matter of public concern is not

actionable if the opinion does not contain a provably false factual

connotation, at least when a media defendant is involved. Id. at

19-20.

See Water Resources Development Act (WRDA) of 2000,

Pub. L. 106-541, § 601(b), 114 Stat. 2572, 2680-2681 (2000)

(approving the Comprehensive Everglades Restoration Plan, a

long-term series of existing and future water management

data or analysis In short, Hurchalla’s statements on

which the court below found her liable were wellreasoned, good faith, debatable statements in the

nature of opinion. The court below focused exclusively

on the word “documented”, and failed to give due

regard to the special context in which the word was

used, or to Hurchalla’s or the expert’s reasoning.

By glossing over the nuanced distinction between

environmental conclusions and pure, objectively

verifiable facts, the state court applied the wrong law,

devastating the free speech rights of those concerned

with scientific and environmental matters. It ignored

the inherently complex, uncertain, and debatable

nature of scientific and environmental facts.

The Court should grant certiorari, examine the

matter de novo,12 whether the statement was an

opinion (or a debatable scientific/environmental

conclusion), and only if it was not, examine de novo

whether it was published knowing it was objectively

false (and therefore maliciously) or based on an honest,

good faith, arguable belief it was accurate.13 The Court

should review the failure of the state court to recognize

the distinction between verifiable and non-verifiable

projects to meet ecosystem restoration, flood control and water

supply needs in south Florida, based on project implementation

reports and independent scientific review). Programmatic Regulations codified at 33 C.F.R. Part 385 govern the CERP decisionmaking process.

Especially because the jury did not actually make a finding

on the disputed issue of what the Lake Point study did document.

Cert. Pet. at p. 20.

statements this Court has required to ensure that

tort suits do not become “an instrument for the

suppression” opposing viewpoints on controversial or

complex public policy disputes. Snyder v. Phelps, 562

U.S. 443, 459 (2011).

b. Due to Their Inherently Uncertain and

Debatable Nature, Good Faith Statements

Regarding Disputed Scientific Conclusions

of Public Concern Cannot Constitute

Tortious Falsehoods.

Because of the inherently debatable, uncertain

and imprecise nature of scientific and environmental

conclusions, the rule that a party seeking falsehood

tort damages must prove that the allegedly offending

statements are “provably false” and “objectively

verifiable”14 should rarely, if ever, result in liability for

such statements. Whether the issue is the spread,

treatment and prevention of COVID 19, the causes of

and contributions to climate change, the impacts of

fracking on human health, or where a wetland ends

and the upland begins,15 the “facts” about human

“[S]tatement[s] of opinion relating to matters of public

concern” are entitled to “full constitutional protection” unless

they allege a “provably false” and “objectively verifiable” fact.

Milkovich v. Lorain Journal Co., 497 U.S. at 20, 22.

For example, the complexity and inherent difficulty of

determining whether a parcel of land is a wetland is well

illustrated by the various opinions issued in this Court’s decision

in Rapanos v. United States, 547 U.S. 715 (2006).

health and the environment inherently involve

uncertain or debated science.

Science engenders “much debate and disagreement. . . .”16 Good faith uncertainty and dispute are

inherent to the nature of scientific “facts.” Courts

recognize that scientific conclusions are inherently

subject to good faith debate, and that judges are ill

suited to resolve these disputes.

The issue this Court addressed in Marsh v. Oregon

Natural Resources Council, 490 U.S. 360 (1989), of

whether new information brought to an agency’s

attention during a NEPA project review was

“significant” is analogous to the question of whether

the study in this case adequately documented the

environmental benefits of the mining pits. Upholding

the agency’s determination, the Court recognized the

conclusion as one upon which “another decisionmaker

might have reached a contrary result. . . .” Id. at 385.

In Ethyl Corp. v. U.S. Envtl. Prot. Agency, the D.C.

Circuit observed that:

Questions involving the environment are

particularly prone to uncertainty. [ . . . ]

Undoubtedly, certainty is the scientific ideal—

See, e.g., Spelson v. CBS, Inc., 581 F. Supp. 1195, 12021203 (N.D. Ill. 1984), aff ’d, 757 F.2d 1291 (7th Cir. 1985) (holding

claims that a doctor was a fraud were protected First Amendment

speech because “medical science, is at best an inexact science . . . ”

and thus speech on such matters is protected “[r]egardless of the

merit of [those] opinion[s].”).

to the extent that even science can be

certain of its truth.

541 F.2d 1, 24-25 (D.C. Cir. 1976) (emphasis added).17

In American Oceans Campaign v. Daley, 183

F. Supp. 2d 1, 11-12 (D. D.C. 2000), the D.C. Circuit also

emphasized the inability of the judicial system to

resolve disputes about environmental conclusions,

explaining:

Where the agency decision turns on issues

requiring the exercise of technical or scientific

judgment, it is essential for judges to “look

at the decision not as the chemist, biologist,

or statistician that we are qualified neither

by training nor experience to be, but as a

reviewing court exercising our narrowly

defined duty of holding agencies to certain

minimal standards of rationality.”

(citing Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir.

1976) (en banc).

The distinction between “simple” facts and those

involved in Hurchalla’s Certiorari Petition is perhaps

most explicitly recognized in Oceana, Inc. v. Evans,

384 F. Supp. 2d 203 (D. D.C. 2005), where the court

observed:

this court will not second guess an agency

decision or question whether the decision

made was the best one. This is particularly

See also Lead Indus. Ass’n v. Envtl. Prot. Agency, 647 F.2d

1130, 1152-1156 (D.C. Cir. 1980); Les v. Reilly, 968 F.2d 985 (9th

Cir. 1992).

the case when the Court is evaluating

the Secretary’s scientific determinations, as opposed to simple findings of

fact. See Baltimore Gas & Elec. Co. v. NRDC,

462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct.

2246 (1983).

Id. at 211-212 (emphasis added).

The court found it “ ‘especially appropriate” to

defer to the expertise and experience of the agency

charged with “making difficult policy judgments

and choosing appropriate conservation and

management

measures

based

their

evaluations of the relevant quantitative and

qualitative factors.” Id. at 212 (citing Nat’l Fisheries

Inst. v. Mosbacher, 732 F. Supp. 210, 223 (D. D.C.

1990)).

The “scientific determination” the Oceana court

characterized as involving “evaluations of the relevant

quantitative and qualitative factors,” as opposed to

simple findings of fact, was whether the allowance of

certain scallop fishing gear (large steel dredges and

trawls that sweep along the ocean floor) would

“jeopardize the continued existence” of loggerhead

sea turtles. Oceana, Inc., 384 F. Supp. 2d at 212-213.

That conclusion is analogous to the one asserted by

Hurchalla, i.e. that a study had not been done which

documented the benefits of Lake Point’s mining

operation to her community’s water resources. These

are the kinds of conclusions and assertions involved in

virtually every public debate about science. They

involve a mix of quantitative, qualitative, and policy

considerations. They are not pure facts and cannot

form the basis for tortious falsehood liability when a

jury subsequently decides otherwise.

Recognition of the complex and inherently

debatable nature of scientific conclusions underlies the

federal jurisprudence involving challenges to federal

agency actions under environmental laws. One

example, involving, like the Hurchalla matter, a

dispute over the adequacy of a scientific report, is

Friends of Congaree Swamp v. FH, 786 F. Supp. 2d

1054 (D. S.C. 2011). In that case, the court rejected a

claim that a federal agency’s “consideration of the

potential environmental impacts of the Project lacked

the scientific rigor and high quality of analysis

required by NEPA.” The court stated,

in evaluating the sufficiency of an agency’s

scientific analysis . . . courts “grant considerable discretion to agencies on matters ‘requir[ing] a high level of technical expertise.’ ”

Ecology Ctr. v. Castaneda, 574 F.3d 652, 658659 (9th Cir. 2009) (quoting Marsh, 490 U.S.

at 377). Thus, although a party challenging an

agency’s decision . . . “may cite studies that

support a conclusion different from the one

the [defendant agencies] reached, it is not

our role to weigh competing scientific

analyses.” (emphasis added)

786 F. Supp. 2d at 1065 (citations omitted).18

Accord Ecology Center v. Castaneda, 574 F.3d 652, 659

(9th Cir. 2009) (finding “it is not our role to weigh competing

scientific analyses.”); W. Watersheds Project v. Salazar, 766

In Lands Council v. McNair, 537 F.3d 981 (9th Cir.

2008), the court found it improper for the judiciary to

“act as a panel of scientists that . . . chooses among

scientific studies . . . and orders the agency to explain

every possible scientific uncertainty.” Id. at 988.19 In

Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.

1992), the court ruled,

To set aside the [agency]’s determination in

this case would require us to decide that the

views of the [plaintiff ]’s experts have more

merit than those of the [agency]’s experts, a

position we are unqualified to take.

14 F.3d at 1333 (emphasis added).

In Resolute Forest Products, Inc., et al. v.

Greenpeace International, et al. (“Resolute Forest

Products”),20 the district court dismissed tortious

interference and related claims similar to those in this

F. Supp. 2d 1095, 1105, 1114, 1121 (Dist. Montana 2011) (Holding

that “the courts’ role is not to weigh in on competing scientific

analyses” and upholding, as reasonably based on disputed

science, an agency determination that a herd of Yellowstone bison

was “viable and genetically diverse” and that the court is “not

equipped with the scientific background necessary to evaluate”

the validity of a report on the genetics of the bison submitted by

the plaintiffs).

Accord, Oregon Natural Desert Ass’n. v. U.S. Forest Serv.,

957 F.3d 1024, 1036 (9th Cir. 2020).

Resolute Forest Products et al. v. Greenpeace Int’l, et al.

2019 U.S. Dist. LEXIS 10263 *; 2019 WL 281370 (U.S. District

Court, N. Dist. Cal., Jan. 22, 2019) (Order Granting In Part And

Denying In Part Motions To Dismiss And Strike); Resolute Forest

Products et al. v. Greenpeace Int’l, et al., 302 F. Supp. 3d 1005 (N.

D. Cal. 2017).

case. The court’s rulings highlight the reasons why

statements reflecting an honestly held understanding

of scientific or environmental conclusions should not

be actionable as falsehoods.

In Resolute Forest Products, a logging company

sued multiple organizations, officers, and employees,

alleging defamation and tortious interference with

prospective and contractual business relations.21 The

company alleged the defendants “had targeted the

company with a number of media campaigns designed

to reduce [its] profits through false or misleading

statements about [its] impacts on the environment and

on indigenous communities.”22 Resolute Forest claimed

the defendants had published a “false report” accusing

it of logging in a forest protected by the Canadian

Boreal Forest Agreement, and later admitted that the

company had not breached the agreement. The suit

also targeted what the plaintiff described as the

defendant’s alleged campaign referring to Resolute

Forest Products as “Resolute Forest Destroyer,” in

which it fabricated “phony photographic evidence” and

misrepresented the location of Resolute’s logging.23

The company also claimed the defendant’s “tactics

show that the organization does not ‘actually care

about . . . real environmental protection,’ has no

‘genuine interest’ in protecting the forest, and that

302 F. Supp. 3d 1005, 1010 (N. D. Cal. 2017).

Id. at 1011 (Internal quotation marks omitted).

Id.

‘science and truth are not important to Greenpeace.’ ”24

It alleged that it lost profits because of the defendant’s

statements.25

Amici recommends to this Court the analysis upon

which the district court dismissed the suit as an

inappropriate use of tortious interference lawsuits to

resolve disputes over public statements about disputed

environmental conclusions.

The district court specifically addressed the issue,

squarely present here, of statements regarding disputed scientific conclusions, observing, “many of

Greenpeace’s publications . . . rely on scientific research or fact.”26 The court found that the logging

company’s submission of two expert declarations contradicting the environmental defendant’s statements:

makes more manifest, not less, the degree to

which the challenged statements are protected by the First Amendment. These

declarations illustrate the extent to which

the challenged statements (a) concern

matters of public importance and (b) are

subject to professional debate.

Id. (emphasis added).

The disputed issue concerned the “stewardship”

certification of the company’s timber harvesting

practices. As to the dispute between the parties’

Id. at 1011.

Id.

Id. at 1021.

opposing expert declarations about whether the

company’s practices qualified for such certification, the

court observed:

[t]he academy, and not the courthouse, is

the appropriate place to resolve scientific disagreements of this kind.

Id. at 1021 (emphasis added).

The court noted that the disputed statements

involved the “complex” and “uncertain” science of

“sustainable biodiversity” and “healthy forests,”27 and

that:

scientific controversies must be settled

by the methods of science rather than by

the methods of litigation.

Id.28

It added:

[C]ourts have a justifiable reticence

about venturing into the thicket of scientific debate, especially in the defamation

context.

Id. (emphasis added).29

In its subsequent ruling on the amended complaint, the court dismissed all claims with prejudice

Id. at 1021 n.11.

Citing Underwager v. Salter, 22 F.3d 730, 736 (7th Cir.

1994).

Citing Arthur v. Offit, 2010 WL 883745, at *6 (E.D. Va.

Mar. 10, 2010).

except the allegation that the defendants falsely

claimed that the company harvested trees in a

specifically defined geographic area, which the court

deemed “provably false.”30

The court held the defendants cannot be liable

for statements that Resolute “destroyed” the forest,

because “the use of the word ‘destroy’ is hyperbolic

opinion describing a loss of forest trees, which did

occur.”31 Neither, wrote the court, could the defendants

be liable for a statement that the company’s logging

certificates had been suspended due to “serious

shortcomings” that the plaintiff alleged were instead

“narrow and idiosyncratic issues.” The difference

between these phrases, wrote the court, “is one of

opinion and not fact.”32

The statements which the Resolute Forest dismissed as being non-actionable are closely analogous

to Hurchalla’s statement that no study that

“documented the benefits” of Lake Point’s mining pit

had been provided. Whether a “benefit”, defined as

“something that produces good or helpful results,”33

has been demonstrated is either a debatable scientific

conclusion or an opinion, or both.

The decisions discussed above demonstrate the

ill fit between statements made about subjective and

Resolute Forest Prods. v. Greenpeace Int’l, 2019 LEXIS

10263, at *34 (N. D. Cal. Jan. 22, 2019).

Id. at 36.

Id. at 35.

https://www.merriam-webster.com/dictionary/benefit.

debatable environmental conclusions and tortiously

actionable false statements of objectively verifiable

fact. In the case of the former, the existence of any

valid basis for a citizen’s claims (as in this case, the

supporting opinion of an expert witness) should

preclude civil liability when the jury resolves the

debate in favor of the opposing view. Statements

about environmental and scientific conclusions are

policy matters subject to frequent and rigorous

debate throughout the country. Citizens, businesses,

landowners and advocacy organizations often provide

public comment, either verbal or written, to public

officials, stating their opinions on such matters. The

First Amendment requires that they be free do so.

c. The Modes of Communication the State Court

Deemed Improper Are Wholly Legitimate,

Necessary and Protected Methods of Petition

Concerning Environmental Conclusions.

The error of the state court’s failure to recognize

this distinction is manifold and will have dire First

Amendment implications for First Amendment rights

given the reasoning behind its conclusion that

Hurchalla’s communications were maliciously false.34

The court reasoned that Hurchalla’s superior knowledge

about the issue, and the relative lack of knowledge on the part

of the elected officials to whom her statements were addressed

gave her “significant influence with a majority of the

commissioners.” Cert. Pet., App. 17a. It deemed improper that

Hurchalla, encouraged her elected officials to express her view of

the circumstances as their own, and instructed them as to how

The Court should grant Certiorari to review this

decision because it violates the First Amendment. To

deem it improper to assert environmental conclusions

without presenting contrary claims35 is to squelch

citizen engagement on these crucial issues.36 To

deprive the right to petition to a citizen who has done

more homework on an issue than her government

representatives is unconstitutional. When subject matter experts and knowledgeable, perhaps influential,

citizens share their knowledge with their representatives and urge them to adopt their studied views as

policy, it means representative democracy is working

as intended, not that something “surreptitious” is

afoot.

d. Citizen Speech on Scientific and Environmental Matters is Essential to Adopting and

Implementing Public Policy.

Extensive citizen engagement is essential to

implementing environmental policy. The legislative

history of the 1977 federal law regulating mining

they should go about achieving the policy outcome she desired.

Cert. Pet., App. 17a.

Cert. Pet. at p. 13.

Amici share Petitioner’s concern that the decision below

would require lay and expert speakers alike to meticulously verify

all statements and contrary views on environmental conclusions

before speaking up, seriously endangering the integrity of our

democratic system by effectively precluding them from

petitioning their representatives “lest any misstep or inaccuracy

expose them to crushing damages awards.” Cert. Pet. at p. 27.

includes an important statement about the importance

of citizen advocacy that rings true today:

The success or failure of a national coal

surface mining regulation program will

depend, to a significant extent, on the

role played by citizens. . . . The [agencies]

can employ only so many inspectors, only a

limited number of inspections can be made on

a regular basis and only a limited amount of

information can be required in a permit or . . .

elicited at a hearing. [ ] [C]itizen involvement . . . will help insure that the

decisions and actions of the regulatory

authority are grounded upon complete

and full information. [ ] Thus in imposing

several provisions which contemplate active

citizen involvement, the committee is carrying out its conviction that the participation

of private citizens is a vital factor in the

regulatory program. . . .

Surface Mining Control and Reclamation Act of 1977,

Report of the Comm. on Interior and Insular Affairs,

House of Rep., Together with Additional, Concurring,

Separate and Dissenting Views to Accompany H.R. 2

(Including the Congr. Budget Office Cost Estimate),

April 22, 1977, at 88-89 (emphasis added).

The state court’s decision ignores the need for

extraordinary caution in applying false claims-related

liabilities to statements concerning scientific matters.

Fundamentally, the “falsehoods” upon which liability

was premised were judgment calls over whether the

analysis of the claimed environmental restoration

benefits of the company’s mining pits had been

adequately documented.

In this case, once Hurchalla produced an expert

witness who corroborated her view, testifying that the

preliminary study did not adequately document

storage and treatment benefits of the Lake Point

project,37 the case should have been over. Even if the

jury disagreed with Hurchalla’s view that the analysis

in question failed to document the claimed environmental benefits of the mining pit, the Constitution

does not allow financial tort liability against a citizen

who asserts one side of a disputed environmental

conclusion as they petition their government for

redress.38

Amici share Petitioner’s concern that the decision

below encourages private actors who are the object of

public speech “to wield litigation as a weapon to silence

potential critics.”39 The state court’s decision threatens

the right to petition and seek government redress, and

to provide valuable information essential for public

debate. No citizen should be financially liable for a

statement of opinion about a complex scientific,

environmental or engineering study or conclusion

simply because a judge or jury decides a contrary statement was more persuasive. Subjecting statements like

Cert. Pet. at p. 20, fn. 5

Citizens have a First Amendment right to communicate

with public officials about matters of public policy. See New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Cert. Pet. at p. 16.

Hurchalla’s to tort liability will effectively end citizen

advocacy, causing an appalling and unconstitutional

imbalance of speech in government decision making on

matters of crucial impact on the public’s health, safety

and welfare. “[W]ould-be critics of official conduct may

be deterred from voicing their criticism, even though it

is believed to be true and even though it is in fact true,

because of doubt whether it can be proved in court or

fear of the expense of having to do so.” New York Times

Co. v. Sullivan, 376 U.S. 254, 279 (1964).

The Court should grant certiorari and announce a

rule requiring great caution in applying false claimsrelated liabilities to statements concerning scientific

or engineering conclusions. The First Amendment

requires that, when supported by any sound basis,

statements made to governmental entities regarding

such matters should not constitute “tortious interference” unless they are pure statements of objectively

verifiable fact.

---------------------------------♦---------------------------------

CONCLUSION

For the reasons stated above, the Court should

grant the Petition for Writ of Certiorari.

Respectfully submitted October 14, 2020.

RICHARD GROSSO, ESQ.

RICHARD GROSSO, P.A.

6919 W. Broward Blvd., Mailbox 142

Plantation, FL 33317

954-801-5662

grosso.richard@yahoo.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.