Marbled Murrelet v. Babbitt

Citations: 83 F.3d 1060; 1996 WL 227326Docket: No. 95-16504

Court: Court of Appeals for the Ninth Circuit; May 7, 1996; Federal Appellate Court

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Pacific Lumber Company sought to log trees in Owl Creek, an old-growth forest, prompting the Environmental Protection Information Center (EPIC) to file a lawsuit to prevent this, claiming the logging would violate the Endangered Species Act (ESA) by threatening the marbled murrelet, a listed threatened species. Following an eight-day trial, the district court issued a permanent injunction against Pacific Lumber's logging activities. On appeal, Pacific Lumber argued that the injunction was improper as it relied on the potential for future harm rather than evidence of past harm, as required by the Supreme Court's ruling in Babbitt v. Sweet Home Chapter. Additionally, Pacific Lumber contested the reliability of EPIC's scientific evidence regarding the effects on murrelet breeding, referencing the Daubert standard for expert testimony. The appellate court upheld the district court's decision, affirming the injunction. The marbled murrelet is known for its solitary nesting habits in old-growth forests, with a significant decline in population primarily due to habitat loss from logging. Owl Creek, a 440-acre area surrounded by previously logged land, was deemed suitable nesting habitat for the murrelet. Pacific Lumber’s Timber Harvest Plan 237 was rejected by the California Department of Forestry and Fire Protection due to insufficient measures to prevent harm to the species, in violation of the California Endangered Species Act.

On March 18, 1992, the California Board of Forestry conditionally approved Pacific Lumber's Timber Harvest Plan (THP-237), requiring compliance with marbled murrelet survey protocols and reporting to the California Department of Fish and Game (CDFG) to prevent the 'take' of the species. Over the subsequent three years, Pacific Lumber conducted surveys that were inconsistent with the required protocols and designed to minimize detection of marbled murrelets, resulting in over one hundred detections, including evidence of 'occupied behavior.' Despite warnings from the U.S. Fish and Wildlife Service regarding potential harm to the species under the Endangered Species Act (ESA), Pacific Lumber engaged in unauthorized logging operations in Owl Creek in June and again during Thanksgiving weekend in 1992.

A citizen suit was filed on April 16, 1993, under the ESA, leading to a trial from August to September 1994. On February 27, 1995, the district court found that THP-237 would 'harass' and 'harm' marbled murrelets, constituting a 'take' under the ESA, and issued an injunction against the plan, awarding $1,110,344.29 in attorney fees to the Environmental Protection Information Center (EPIC). In the appeal, the court addressed whether Pacific Lumber had waived its right to argue that evidence of future harm was insufficient for the injunction. The court noted that generally, issues not raised in the district court are not considered on appeal, but exceptions exist. The only relevant exception here pertained to an alleged intervening change in law stemming from a recent Supreme Court decision, which necessitated a review of Pacific Lumber's claims regarding the legal sufficiency of evidence for the injunction.

Pacific Lumber asserts that the district court lacked authority to issue an injunction under the Endangered Species Act (ESA), claiming that an injunction is only permissible when a violation of the Act has already occurred, as stated in 16 U.S.C. 1540(g)(1)(A). Pacific Lumber bases this argument on the Supreme Court's decision in Sweet Home, which it believes invalidated the Ninth Circuit's ruling in Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (1995). However, it is emphasized that the ESA aims to conserve ecosystems vital to endangered and threatened species (16 U.S.C. 1531(b)), and allows citizen suits to enjoin violations (16 U.S.C. 1540(g)(1)(A)). Under the ESA, taking an endangered species, which includes "harassment" and "harm," is prohibited. Definitions provided by the Secretary of the Interior clarify that "harassment" can involve actions that significantly disrupt an animal's behavior, while "harm" refers to acts that kill or injure wildlife, including habitat modification. The Ninth Circuit has consistently held that a credible threat of future harm is sufficient for issuing an injunction under the ESA. In Rosboro, the court reversed a district court ruling that required proof of past injury to a species, affirming that the ESA's purpose is to protect species and prevent their decline, thus allowing for preemptive action against potential future harm. The decision in Sweet Home does not negate the Rosboro holding, as the Supreme Court upheld the Secretary's broad interpretation of "harm" to include indirect impacts such as habitat modification.

The broad purpose of the Endangered Species Act (ESA) supports extending protections to habitat modifications. The 1982 amendment's permit system indicates that Congress intended to prohibit both indirect and deliberate takings. Pacific Lumber's argument, based on a footnote from the Sweet Home decision that suggests harm requires actual death or injury to a protected species, is rejected. The footnote does not limit injunctive relief to past violations. The Secretary's amendment to the harm regulation specifically aimed to clarify that habitat modification alone does not constitute harm without actual injury to wildlife. The Sweet Home case did not address the necessity of showing past injury for an injunction, and any implication that such a requirement exists is considered dictum. The Court affirmed that an injunction can be granted based on a threat of imminent harm, thus supporting the interpretation that a reasonably certain threat to a protected species is sufficient for issuing an injunction under section 9 of the ESA. The precedent established in Rosboro remains valid, indicating that the Supreme Court's ruling in Sweet Home does not negate this interpretation.

Pacific Lumber challenges the sufficiency of the evidence presented against it, primarily arguing that EPIC's scientific evidence regarding impaired breeding of marbled murrelets does not meet the reliability standard established in Daubert v. Merrell Dow Pharmaceuticals. The Daubert ruling clarifies that the admissibility of expert scientific evidence is governed by Federal Rule of Evidence 702, which requires a reliable foundation and relevance to the trial's issues. Although Pacific Lumber raises a Daubert challenge within the context of an insufficiency of the evidence argument, it effectively waived this challenge by failing to object during the trial and request a ruling on its pretrial Daubert objections. The district court did not address these objections, and Pacific Lumber did not provide evidence of any relevant discussions or rulings from the trial transcript. Allowing Pacific Lumber to challenge the evidence on appeal would unfairly advantage it, as it could potentially undermine the trial court's decision without giving EPIC the opportunity to strengthen its evidence. Furthermore, Pacific Lumber argues that impaired breeding should not be classified as 'harm' under the Endangered Species Act (ESA), asserting that it affects the population rather than individual birds. However, this position lacks support from relevant precedents, including the Sweet Home case, which did not specifically address the nature of harm in this context.

The dissent in Sweet Home critiqued the Secretary's regulation defining 'harm' under the Endangered Species Act (ESA) as overly broad, arguing that it incorrectly classified impaired breeding as harm to an individual animal rather than to a population. Justice O’Connor, in her concurrence, countered this view, asserting that significant impairment of breeding does indeed injure individual animals, referencing the dictionary definition of 'injure' to include 'impair.' She further argued that even if impaired breeding was not an injury in itself, it could lead to other forms of injury. The majority opinion upheld the Secretary's 'harm' regulation, which encompasses significant habitat modification causing injury by impairing essential behaviors, including breeding. Therefore, significant impairment of breeding and sheltering due to habitat modification qualifies as 'harm' under the ESA, including threats of future harm.

Evidence presented in the district court indicated approximately 100 detections of marbled murrelets at Owl Creek over three breeding seasons, including signs of nesting behavior. Experts testified that the logging plan by Pacific Lumber would likely harm the murrelets by impairing breeding and increasing predation risks. The court affirmed the findings of nesting in Owl Creek and the imminent threat from the logging operations, noting that a reasonably certain threat of future harm suffices for a permanent injunction under the ESA, as established in Rosboro. Pacific Lumber's challenge regarding the admissibility of scientific evidence based on Daubert standards was not considered on appeal due to its failure to seek a ruling in the district court. The evidence was deemed sufficient to uphold the district court's findings and judgment. The ruling was affirmed.

The Cities of Fortuna, Eureka, and Rio Dell, along with the Pacific Legal Foundation, sought to file an amici curiae brief in support of Pacific Lumber; however, their motion was denied due to its late submission and lack of justification for the delay. The Pacific Seabird Group (PSG), a scientific organization, leads research on marbled murrelets and provides standardized methods for assessing their use of inland forests. The PSG Protocol defines 'occupied behavior' as actions observed in areas with nesting evidence and considers it a strong indicator of murrelet nesting activity. The Timber Harvest Plan (THP-237), as modified, proposes a 137-acre area for harvesting 40% to 60% of the trees. The court does not need to evaluate the evidence supporting the district court’s finding that implementing THP-237 would 'harass' marbled murrelets, as the district court's determination of 'harm' under the Endangered Species Act (ESA) is adequate to uphold its injunction without needing to establish harassment.