Judge strikes down ‘chilling’ defamation suit from Sawtooth Valley ranch owner, on free speech grounds

From the Idaho Mountain Express


A Custer County judge dismissed most of a defamation lawsuit from Stanley-area ranch owner Michael Boren on Tuesday afternoon, arguing that three out of four defendants named in his suit—including two Blaine County officials—had been protected by the First Amendment when they publicly criticized his application for a private airstrip last year.

Boren’s Hell Roaring Ranch sits on a scenic easement on the west side of state Highway 75, about 15 miles south of Stanley.

The remote site includes a $1.1 million private hangar built to house the ranch owner’s two-seat American Champion plane and six-seat Eurocopter helicopter, according to a report from ICF Builder Magazine.

Boren, 60—the cofounder of billion-dollar tech company Clearwater Analytics—applied to the Custer County Planning and Zoning Commission last year to officially designate a strip of his property as a private landing area.

The P&Z approved his permit application in May 2021, despite receiving pushback from hundreds of residents and more than 600 comments in the span of a week. The Custer County Commissioners voted to uphold the P&Z’s verdict three months later, in August 2021, on the condition that the airstrip only service a limited flow of general-aviation and emergency air traffic.

Between those decision points, however, a group of concerned citizens from Blaine and Custer County submitted an appeal to the P&Z in which they claimed that air traffic at Boren’s airstrip would degrade the scenery, wildlife habitat and overall outdoor recreation experience of the SNRA.

The group also claimed in their petition that Boren had violated state and federal environmental regulations, including the Clean Water Act, when building his airstrip and associated hangar facility. Their appeal was unsuccessful.

Original lawsuit cited harm to Boren’s reputation
According to a 21-page lawsuit that Boren filed through his attorney, Tom Banducci, in May 2022, three members of the opposition group—Blaine County Commissioner Dick Fosbury, former Blaine County Commissioner Sarah Michael and Stanley first responder Gary Gadwa—continued to spread misinformation about the airstrip and its legality after Boren’s conditional-use permit was approved.

Banducci wrote that the defendants had promoted the “falsehood” that Boren’s airstrip was an “airport,” and made disparaging comments that incited ridicule and even death threats against Boren’s family.

Their comments to the media and general public ultimately forced Boren to seek a declaratory judgment deeming their speech “defamatory,” and therefore unprotected by the First Amendment, Banducci stated on behalf of his client.

Boren also requested a jury trial to recover damages “equal to the amounts” that he spent attempting to preserve his reputation, “as well as general damages in an amount to be proved at trial,” Banducci wrote.

“Left with no options, Boren has resolved to repair his reputation in the courts,” Banducci stated in the original complaint.

In the same filing, Boren sued a fourth defendant, Boise filmmaker Jon Conti, over a YouTube video that Conti had uploaded entitled “The Billionaire Building a Private Airport in the Sawtooths.” The filmmaker allegedly referred to Boren as an ‘a–hole’ who “lies, because that’s who he is,” and has since deleted the video.

Conti responded to the suit by filing a counterclaim against Boren. Records show that the matter between Conti and Boren is still pending in court.

The matter involving Fosbury, Michael and Gadwa came before 7th District Judge Stevan H. Thompson for resolution on Sept. 12 in response to motions to dismiss filed by Fosbury and Michael’s attorneys in July. (Gadwa signed on to both Fosbury and Michael’s motions to dismiss later in the summer.)

On Tuesday, following testimony at last month’s motion-to-dismiss hearing, Thompson agreed to dismiss all claims against Fosbury, Michael and Gadwa on the grounds that they had the constitutional right to speak out against projects that are of interest to the general public, and should be able to air their grievances without fear of retribution.

“In this case, there is the potential for a great chilling effect on constitutional rights not just for these named defendants but for all the members of the public who spoke on this issue, which was undoubtedly a matter of public concern in which they were entitled to involvement,” Thompson wrote in his decision this week.

Petitioning activity protected, defendants argue
Through their separate attorneys—Michael Elia, representing Fosbury, and Deborah Ferguson, representing Michael—Fosbury and Michael raised slightly different arguments in their motions to dismiss. Both motions were filed separately but concurrently on July 5 and joined by Gadwa later in the summer.

At both the September motion-to-dismiss hearing and in written documents, Elia argued that Fosbury had complete immunity from any defamation allegations while debating and acting in his official capacity. Fosbury’s statements were protected by law because they were made in “quasi-judicial proceedings,” and did not directly harm Boren, Elia said.

“Ultimately, [Boren] is not entitled to damages because Defendant Fosbury and members of the public-at-large disagree with his use, and prior use, of his airstrip and exercised their due process right to express that disagreement,” Elia wrote. “Plaintiff’s claims should be dismissed with prejudice.”

Ferguson argued that her client’s speech was protected by the First Amendment and that Boren’s lawsuit represented abuse of the legal system.

“There is a special name for this type of frivolous lawsuit and others like it that attempt to chill participation in the public process. They are called SLAPP [Strategic Litigation Against Public Participation] suits,” she wrote. “To be clear, the objective of SLAPP suits is not to win them, but to use litigation to intimidate an opponents’ exercise of rights of petitioning and speech.”

Gadwa, the current commander for Sawtooth Search and Rescue, testified last month from a remote fire lookout tower. He explained that he was representing himself virtually because his attorney, Keith Roark, had to withdraw due to illness.

Gadwa told the court that he never spoke in a defamatory way toward Boren.

“When [Boren] applied for the airport permit with Custer County, I was asked whether his permit for a landing strip on his ranch would be beneficial to Search and Rescue, because of my extensive knowledge … I said no, because we don’t need it for landing a helicopter and with two nearby airports readily available as well,” Gadwa said. “This statement was in no way personal.”

Gadwa also noted that he had been surprised to be sued by Boren, having gotten to know him in his capacity as an Idaho Fish and Game law enforcement officer.

“I have known Michael Boren since he was a very young fellow. As a game warden I gave him and his younger kid brother fishing pointers and tips numerous times,” Gadwa said.

Judge invites appeal to Supreme Court
Thompson, outlining reasons for dismissing the case, explained in his Tuesday decision that he could not rule the defendants’ speech “defamatory” because anyone who participates in a public governmental hearing is protected by “absolute litigation privilege.”

Even statements made before and after hearings to third parties—that is, if they are related to the subject of the proceedings and not made with malice—are protected by the privilege, the judge said.

“For the statements outside the [conditional-use permit] hearing and appeal, Boren’s [complaint] makes clear that each and every alleged statement of Michael, Fosbury, and Gadwa were related to and in the course of the CUP process,” Thompson wrote.

Thompson also agreed with Ferguson’s conclusion that Boren’s lawsuit had the characteristics of a SLAPP suit, as defined by other states, but noted that there is no anti-SLAPP statute in Idaho.

Therefore, he said the Idaho Supreme Court should weigh in “on how courts in Idaho should protect such important constitutional rights during what may be a SLAPP suit.”

“While the court acknowledges that a typical motion to dismiss does not permit such oversight from the court, it feels necessary in this case for the court to take a gatekeeping role in such a novel and potentially harmful case,” Thompson wrote.

Banducci told the Express over the phone and by email on Thursday that he was “disappointed” by Thompson’s decision to dismiss the action against the defendants, but that he believed legal proceedings to be far from over.

“However, we understand the court’s desire to obtain direction from the Idaho Supreme Court on issues in this case,” he said. “Mr. Boren continues to sustain damage as a result of the defamation described in the complaint. It’s our intention to appeal this order and have the matter sent back for trial after the Idaho Supreme Court has spoken.”

Michael told the Express that she was “relieved” by the verdict and hoped to have her legal fees reimbursed.

“I also hope that Idaho will enact a SLAPP statute that will expedite the process to defend against these types of frivolous lawsuits,” she said.

Gadwa agreed.

“Idaho desperately needs an anti-SLAPP law to stop this kind of frivolous attack on our First Amendment rights,” he wrote by email. “Sadly, the U.S. Forest Service did not stand up against this undesirable activity on the Sawtooth NRA.”

From the Idaho Mountain Express

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