Highland Enterprises, Inc. v. Barker

• Decision Date: 27 August 1999
• Docket Number: No. 23931.,23931.
• Citation: 986 P.2d 996,133 Idaho 330
• Parties: HIGHLAND ENTERPRISES, INC., Plaintiff-Respondent, v. Billy Jo BARKER, Robert Borden, Heather Briggs, Lawrence Juniper, John Kreilick, Peggy Sue McRae, Karen Pickett, Jennifer Lynn Prichard, Peter Leusch, Erik Ryberg, Michael Vernon and Dana Wright, Defendants-Appellants.
• Court: Idaho Supreme Court

986 P.2d 996

133 Idaho 330

HIGHLAND ENTERPRISES, INC., Plaintiff-Respondent, v. Billy Jo BARKER, Robert Borden, Heather Briggs, Lawrence Juniper, John Kreilick, Peggy Sue McRae, Karen Pickett, Jennifer Lynn Prichard, Peter Leusch, Erik Ryberg, Michael Vernon and Dana Wright, Defendants-Appellants.

No. 23931.

Supreme Court of Idaho, Boise, April 1999 Term.

August 27, 1999.

D. Bernard Zaleha, Boise; Kenneth S. Gallant, Moscow, for appellants. Kenneth S. Gallant argued for appellant Jennifer Lynn Prichard. D. Bernard Zaleha argued for remaining appellants.

Clark & Feeney, Lewiston, for respondent. Ronald T. Blewett argued.

TROUT, Chief Justice.

This is an appeal from a judgment entered after a jury found several members of the Earth First! organization (defendants or appellants) liable for interference with the prospective economic advantage of the respondent, Highland Enterprises, Inc. (Highland). The appellants were assessed compensatory and punitive damages. Appellants appeal from an order denying various post-verdict motions.

I. FACTUAL AND PROCEDURAL BACKGROUND

Earth First! is an association which promotes environmentalism and protests against activities that the association's members determine to be anti-environment. The association has a publication, Earth First! Journal, published every six weeks, to which members may subscribe. There is also a regional chapter of Earth First!, Wild Rockies Earth First!, which was formed in 1987 by appellant John Kreilick (Kreilick). Wild Rockies Earth First! is based in Montana and includes within its scope the interests of the Northern Rockies. A quarterly newsletter of Wild Rockies Earth First!, The Wild Rockies Review, is an insert in the Earth First! Journal. The members of Earth First! are encouraged, at meetings and through the journals, to engage in protest activities including "direct action." Direct action involves non-violent protest of road building and timber harvesting such as burying people in the road, erecting tripods in the road and sitting in the tripod, and chaining people to equipment and gates in order to block work. At trial, the parties disputed whether the Earth First! publications also encouraged protesting through "monkeywrenching," which includes vandalism, tree-spiking and damaging equipment. The relevance at trial of various articles addressing monkeywrenching is at issue in this appeal.

In the early 1990s, Highland contracted with Shearer Lumber to perform forest road building near Dixie, Idaho, as part of the Cove/Mallard timber sales. The U.S. Forest Service sold the timber from these sales to Shearer Lumber. In the spring of 1992, Kreilick went to the annual Earth First! Rendezvous and discussed with Robert Amon (Amon)¹ a Cove/Mallard protest campaign to protest the road building and the timber sales. In a discussion circle devoted to Cove/Mallard issues, Amon, Kreilick and others discussed the logistics of the Cove/Mallard protest campaign addressing such issues as food, transportation, camping and the types of protest activities that would occur.

The Cove/Mallard campaign was first publicized in the Spring 1992 edition of the Earth First! Journal. The main organizers of the 1992 campaign included Kreilick, Amon, Erik Ryberg (Ryberg) and Billy Jo Barker (Barker). Ryberg obtained a Forest Service camping permit for July and August of 1992 and various protestors set up camp about ten miles from Highland's road construction. Protest activities occurring in 1992 included tree-sitting, pole-sitting, digging holes in the road, chaining protesters to construction equipment, damaging roads and tree-spiking. At trial, evidence of monkeywrenching in the form of road damage and tree-spiking was presented through circumstantial evidence. The trial court characterized the 1992 protests as "disorganized and relatively small in scale."

The 1993 campaign was larger in scale and better organized. The main organizers of the 1993 campaign included Kreilick, Amon, Ryberg, Barker and Karen Pickett (Pickett). By the spring of 1993, Amon had purchased twenty acres of land near the Cove/Mallard roads to serve as a base camp for the protesters. In May of 1993, Kreilick and Pickett set up camp on Amon's land and on Memorial Day, the Wild Rockies Earth First! Rendezvous took place at the camp. Protestors Kreilick, Amon, Phil Knight (Knight) and Pickett had also engaged in fund raising that year which resulted in the receipt of $20,000. Amon provided food at the camp, but supplies were paid for by the money brought in through fund raising. Monies forwarded to Amon by Pickett² for the 1993 Cove/Mallard campaign were deposited into Amon's "Ancient Forest Bus Brigade" account.

Evidence was presented at trial that through the Earth First! Journal and letters, people were encouraged to come to the base camp and protest or, alternatively, to send supplies and/or money for the campaign. Potential protesters were told that their nutritional needs would be cared for while at the camp. Testimony at trial also explained that decisions for the Cove/Mallard campaign were made through "consensus circles", a decision making process which required that before a decision was implemented, everyone must agree. Anyone identified as having been at the Cove/Mallard camp in 1993 would have attended any number of consensus circles. However, testimony from Ryberg was that the consensus circles rarely resolved anything at Cove/Mallard.

On June 22, 1993, the Forest Service entered a Closure Order restricting public access to the Noble Creek area of Cove/Mallard where the roads were being built by Highland. On June 30, 1993, the following Earth First! activists were arrested: Barker (buried in the road); Kreilick (buried in the road); Michael Vernon (Vernon) and Lawrence Juniper (Juniper) (legal observation and support); Peter Leusch (Leusch) and Beatrix Jenness (Jenness) (interfering with Highland's efforts to remove slash piles from the road); and Jennifer Prichard (Prichard) (chained to access gate). Amon was also arrested for protest activities. All had convictions entered pursuant to Rule 11 agreements.

On July 15, 1993, the following persons were arrested by the Idaho County Sheriff's Department: Peggy Sue McRae (McRae) (tripod sitting); Robert Borden (Borden) (tripod sitting); Dana Wright (Wright) (buried in the road); Barker (buried in the road); Kreilick (buried in the road). They too were convicted for their activities.

Throughout the summer, activists attached themselves to Forest Services vehicles. Additionally, Highland employees and Forest Service agents testified that they found spiked trees, boards in the road with nails protruding, damaged construction equipment, sharpened rebar in the road, missing survey stakes, Earth First! slogans spray-painted on concrete road barriers, and slash piles in the road. A search of Amon's property on June 30, 1993, revealed barrels of climbing rope, climbing harnesses and spikes, tree-sitting platforms, an Earth First! banner, two buckets of nails of the type found in the road, digging tools and green spray-paint cans.

In August of 1993, Highland filed suit against a number of entities, associations and individuals, including 200 Jane and John Does, for conversion, intentional destruction of property and trespass, interference with contract and racketeering based on the protest activities that occurred in 1993. Default judgments were entered against a number of defendants, while the following defendants defended the suit: Barker, Borden, Jenness, Juniper, Kreilick, Leusch, McRae, Pickett, Prichard, Vernon, Wright and Ryberg. A number of defendants counterclaimed alleging abuse of process. Prior to the jury reaching a verdict, the trial court granted Highland's motion for a directed verdict on the counterclaims.

On September 13, 1996, the trial court ruled on various pre-trial motions. The court permitted amendment of Highland's complaint to add a claim for punitive damages, ruled that both parties would have an equal number of peremptory challenges and denied summary judgment in favor of the defendants.

The jury trial began on October 15, 1996 and ended on October 30, 1996. Highland presented only one cause of action: intentional interference with an economic advantage. The jury found that the appellants were liable to Highland for a total of $150,000 in compensatory damages and $999,996 in punitive damages. The jury returned verdicts against each defendant separately and divided the damages in the following manner: Defendants Barker, Kreilick, Leusch, McRae, Pickett, Prichard and Ryberg were each assessed compensatory damages in the amount of $16,667; Defendants Borden, Jenness, Juniper, Vernon and Wright were each assessed compensatory damages in the amount of $8,333; and each defendant was assessed punitive damages in the amount of $83,333.

On November 15, 1996, the defendants filed a motion for new trial, remittitur, and judgment notwithstanding the verdict (JNOV). On May 27, 1997, the trial court ruled against the defendants on all issues, denying the motions.

II. MOTION FOR JNOV

A. Standard of review

The issue to be determined on a motion for (JNOV) is whether substantial evidence supports the jury's verdict. Lanham v. Idaho Power Co., 130 Idaho 486, 495, 943 P.2d 912, 921 (1997). "Substantial evidence" does not require that the evidence be uncontradicted. Rather, the evidence need only be "of a sufficient quantity and probative value that reasonable minds could conclude that the verdict of the jury was proper." Id. at 495-96, 943 P.2d at 921-22 (quoting Watson v. Navistar Int'l Transp. Corp., 121 Idaho 643, 658, 827 P.2d 656, 671 (1992)). Upon a motion for JNOV, the moving party admits the truth of all adverse evidence and all inferences that can legitimately be drawn from it. Id. In ruling on a JNOV, the court cannot weigh the evidence, assess the credibility of witnesses, or make its own factual findings...