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Judge dismisses defamation case against 3 Sawtooth airstrip defendants

Matt Guilhem
Boise State Public Radio

An Idaho district court judge partially dismissed defamation claims made by Boise businessman Michael Boren against people who opposed his application for a private airstrip on his Sawtooth Valley ranch.

Boren applied for a conditional use permit last year with Custer County to designate a part of his property as an airstrip.

Many people opposed the application in public comments, in part because the private property is within the federally-protected Sawtooth National Recreation Area.

The permit was approved by the county, but this spring, Boren filed a defamation lawsuit against four people who opposed it.

He alleged Dick Fosbury, a Blaine County Commissioner, Sarah Michael, a retired Blaine County Commissioner who is also the interim director of the housing authority, and Gary Gadwa, a commander of Sawtooth Search and Rescue, made false and defamatory statements against him during, and outside of, the conditional use permitting process.

Those include allegations that Boren illegally constructed an airport on his property and that he lied to government officials about its construction.

Boren’s lawyers said the defendants “launched a wide-ranging and malicious campaign of character assassination in an attempt to destroy Boren’s reputation.”

In response, the defendants called Boren’s lawsuit “frivolous” and asked for it to be dismissed.

A fourth defendant, filmmaker Jon Conti, made a YouTube video about Boren and the airstrip proceedings. Boren also listed 20 unnamed “Does” as defendants.

This week, in Custer County District Court, Judge Stevan H. Thompson, agreed with Fosbury, Michael and Gadwa that the case against them should be dismissed.

He wrote the alleged statements were all made during, or in relation to, a governmental process, in which the defendants qualify for “absolute litigation privilege.” He said all the alleged activity by the three defendants is protected by the First Amendment.

Thompson also said Boren failed to prove the defendants’ malice.

“People like me – I’m retired – should not have to hire attorneys because we participated in a public process,” said Michael, who said she was relieved when reached by phone Wednesday.

“We’re disappointed by the court’s decision to partially dismiss the action,” said Thomas Banducci, an attorney for Boren, in an emailed statement.

He also said Boren continues to sustain damage as a result of the “defamation described in the complaint,” and that he intends to appeal the decision.

A lawyer for Fosbury declined to comment. Gadwa, who was representing himself in the lawsuit, said he was happy with the judge’s decision.

In response to Michael’s claims that this was a “SLAPP” suit – or, a strategic lawsuit against public participation – Thompson said that the term is not recognized in Idaho and that there’s no “Anti-SLAPP” statute that would allow the court early intervention to protect against potential chilling effects on constitutional rights.

But, he said the case had many key characteristics of a SLAPP suit as defined by other states.

He said allowing the case to continue without input from the Idaho Supreme Court about how to protect constitutional rights of both the named defendants and members of the public “would not be in the interests of justice.”

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

The case against the Conti, who has also filed a counter-claim against Boren, remains ongoing.

Find reporter Rachel Cohen on Twitter @racheld_cohen

Copyright 2022 Boise State Public Radio

I cover environmental issues, outdoor recreation and local news for Boise State Public Radio. Beyond reporting, I contribute to the station’s digital strategy efforts and enjoy thinking about how our work can best reach and serve our audience. The best part of my job is that I get to learn something new almost every day.

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