Court: District Court, D. Oregon; December 18, 2016; Federal District Court
Plaintiff environmental organizations have initiated legal action under the Endangered Species Act (ESA) against logging companies to temporarily prevent the Benson Snake logging project. They claim this project threatens to destroy forty-nine acres of old-growth forest habitat for marbled murrelets, a threatened species. Plaintiffs argue that logging in this habitat constitutes an unauthorized 'take' of the species, violating Section 9 of the ESA.
Defendants counter that plaintiffs failed to meet notice requirements, lack standing, are unlikely to prevail, and have not shown irreparable harm will occur without an injunction. They also argue that an injunction would not serve the public interest.
The background reveals that in 2013, the Oregon State Land Board offered tracts of the Elliott State Forest for sale. Prior to bidding, plaintiffs warned defendants about the marbled murrelet presence and expressed intentions to sue if logging occurred. After purchasing two tracts, defendants commissioned a study by Western Ecosystems Technology, which concluded that logging could proceed without harming marbled murrelets, as their habitat was not used for nesting during the relevant years.
Contrarily, plaintiffs argue their own survey indicates the Benson Snake parcel is occupied by marbled murrelets, based on observed behaviors that suggest breeding importance. They assert that under established protocols, the entire contiguous habitat should be classified as occupied due to the observed behaviors, prompting their request for a preliminary injunction to stop logging activities until the case is resolved. The court has granted the plaintiffs’ motion for a preliminary injunction.
Defendants request the denial of plaintiffs’ motion for a preliminary injunction, arguing that the court lacks jurisdiction due to plaintiffs' failure to provide the required pre-suit notice under the Endangered Species Act (ESA). They contend that notice provided in 2014 was insufficient as it did not pertain to the Benson Snake project, which was not yet planned. Plaintiffs counter that anticipatory notice of an ESA violation is acceptable, emphasizing that the ESA aims to prevent harm to listed species before it occurs. The ESA mandates a written notice of violations at least sixty days prior to litigation, and this notice is a jurisdictional requirement.
The sufficiency of the notice is not determined by the inclusion of every detail but rather by whether it allows the defendant to recognize and address the alleged violation. The court may assess the notice and the defendants’ reactions to gauge their understanding of the violations. The plaintiffs’ notice was deemed valid, as it was sent sixty days before the lawsuit and indicated an intention to litigate against timber harvests in the area, which is relevant to the breeding of marbled murrelets. Although the notice predates the development of specific harvest plans, it was sufficient given that defendants are logging companies and were on notice regarding potential actions.
Furthermore, defendants’ actions post-notice, such as commissioning a study to investigate the allegations, demonstrate their awareness and opportunity to address the issues raised. Thus, the 2014 notice letter is upheld as adequate.
Additionally, defendants argue that plaintiffs lack standing, which is a prerequisite in federal cases. To establish Article III standing, plaintiffs must show an actual or imminent injury, a causal link between the injury and the defendants’ conduct, and that a favorable ruling would likely redress the injury.
Injury-in-fact requires that the injury be concrete, particularized, and actual or imminent. Plaintiffs claim that the defendants’ logging project will harm their ability to view marbled murrelets and diminish their recreational enjoyment of the Elliott State Forest. These claims of aesthetic and recreational harm are recognized as valid in federal court, as established in Sierra Club v. Morton and supported by Natl. Audubon Soc’y v. Davis. The court finds that the plaintiffs, including members of the Cascadia Wildlands organization, have demonstrated sufficient injury related to their interests in wildlife observation to meet the injury-in-fact standard.
Defendants argue that plaintiffs will not suffer concrete injuries since legal access to the Benson Ridge Tract is lost. However, the plaintiffs maintain that they can still view and enjoy the area from adjacent public lands, which grants them standing. The court clarifies that plaintiffs do not need legal access to the site in question to establish injury-in-fact; they can claim injury from public vantage points.
The plaintiffs’ injuries are also particularized, affecting them in a personal manner. Francis Eatherington, a board member of Cascadia Wildlands, articulated concerns regarding the logging's impact on his ability to experience the forest and observe marbled murrelets. The court finds these personal assertions sufficient to satisfy the particularized injury requirement.
Finally, the injuries are deemed imminent rather than speculative, based on the plaintiffs' concrete plans to use the Benson Ridge area for recreation and aesthetic enjoyment. One declarant expressed intentions to visit within six months, emphasizing the irreplaceable nature of the old-growth habitat, thus reinforcing the immediacy of the claimed harm.
The Supreme Court has established that vague intentions without concrete plans do not demonstrate the 'actual or imminent' injury necessary for standing. However, plaintiffs in this case have sufficiently alleged concrete plans to return to the Benson Ridge parcel. Their repeated recreational use, along with credible claims of future use, is adequate to show that environmental degradation harms them.
Defendants have not contested the plaintiffs' claims of causation or redressability, but courts have a duty to verify jurisdiction. The plaintiffs' claims meet the criteria for standing, demonstrating that their aesthetic and recreational injuries stem from the proposed logging, and a favorable ruling would remedy these injuries by preserving the forest and protecting the marbled murrelet population.
The plaintiffs seek a preliminary injunction to halt logging in the Benson Snake parcel pending a resolution of the case. Defendants argue that the plaintiffs have not met the standard for such an injunction, which is deemed an extraordinary remedy requiring a clear demonstration of entitlement. The Ninth Circuit has two standards for preliminary injunctions: the traditional standard requires establishing a likelihood of success on the merits and irreparable harm, while the alternative standard allows for a sliding scale of proof. The Supreme Court's ruling in Winter rejected the first sliding scale approach, emphasizing that both irreparable harm and a likelihood of success must be established under the traditional standard.
The Supreme Court reversed the Ninth Circuit's lenient 'possibility' standard for injunctive relief, establishing a more stringent criterion that aligns with the Ninth Circuit's traditional standards. Justice Ginsburg's dissent clarified that the Court did not entirely dismiss the 'sliding scale' approach to injunctive relief but rejected the initial variant of it. The viability of a second sliding scale test—focused on serious questions about the merits and a favorable balance of hardships—was considered in the case of Alliance for the Wild Rockies v. Cottrell. In that case, the Ninth Circuit, faced with a preliminary injunction request from environmental advocacy groups, overturned a district court's denial, asserting that the serious questions test remained valid post-Winter. The Ninth Circuit concluded that a preliminary injunction is justified if plaintiffs raise serious questions regarding the merits and the balance of hardships significantly favors them, alongside meeting other Winter standards like likelihood of irreparable injury and public interest.
Plaintiffs sought a preliminary injunction under Section 9 of the Endangered Species Act (ESA), which prohibits the taking of endangered or threatened species, defined broadly to include various harmful actions. The term 'harass' captures actions likely to disrupt normal wildlife behavior. The plaintiffs argue that defendants' plan to clear-cut 49 acres of a 355-acre area may harm marbled murrelets, a threatened species, by significantly degrading their habitat. Such habitat destruction could lead to a 'take' under the ESA, as it would impair the species' essential behavioral patterns. If the plaintiffs are correct regarding the occupation of the site by marbled murrelets, the logging would likely constitute a take. Conversely, if the defendants prove the area is unoccupied by the species, the plaintiffs' claims would fail.
Plaintiffs must demonstrate serious questions regarding whether the Benson Ridge parcel is occupied by marbled murrelets, relying on the PSG Protocol, which they assert indicates occupancy. Defendants challenge this conclusion, arguing the PSG Protocol is outdated and not based on the latest scientific research, while claiming the WEST study offers a more scientifically valid approach. Both sides present compelling arguments regarding their methodologies. The court finds that serious questions exist as to the merits, satisfying the criteria for a preliminary injunction.
To obtain such relief, plaintiffs must also show a likelihood of irreparable harm. They assert that the unauthorized taking of marbled murrelets would cause irreparable harm, as it would diminish their enjoyment of observing these threatened seabirds in the Elliott State Forest. If the birds occupy the parcel, logging would result in irreparable injury; however, if they do not, no such harm would occur. The determination of irreparable harm is closely linked to the validity of the scientific methods used to ascertain occupancy. Since serious questions about the merits exist, plaintiffs have sufficiently established the likelihood of irreparable harm, supporting the case for a preliminary injunction.
Irreparable harm in First Amendment cases typically favors the movant and is closely linked to the likelihood of success on the merits. In the context of trademark infringement and unfair competition claims, as noted in Deltek, Inc. v. Iuvo Sys., Inc., the assessment of irreparable harm is integral to evaluating the plaintiff's chances of prevailing. The defendants contend that the plaintiffs have failed to demonstrate likely irreparable harm regarding timber harvesting's impact on marbled murrelets, arguing that harm must be assessed at the species level rather than for individual birds. This assertion is incorrect, as plaintiffs have claimed an interest in specific marbled murrelets in the Benson Ridge area and have indicated that clear-cutting would prevent them from observing these birds. Therefore, the plaintiffs have established a likelihood of irreparable harm, supporting their request for a preliminary injunction.
Regarding the balance of hardships, plaintiffs must show that it significantly favors them. Under the Endangered Species Act (ESA), the balance automatically leans toward the protection of endangered species, as established in Tenn. Valley Auth. v. Hill. The Ninth Circuit has upheld this principle, removing traditional equitable discretion in ESA cases. While plaintiffs often align with the interests of protected species, courts require a clear basis for concluding that an injunction will benefit both the species and the plaintiffs, rather than simply asserting that the balance of hardships favors them. In Alliance for the Wild Rockies v. Kruger, it was emphasized that the court must assess whether the injunction would genuinely serve the interests of the endangered species over those of the plaintiffs.
The plaintiffs and the marbled murrelets face aligned hardships due to the potential project, which would prevent the murrelets from nesting in the clear-cut area for nearly a century and diminish the plaintiffs' ability to enjoy the mature and old-growth forest habitat. This situation favors granting a preliminary injunction. The public interest similarly weighs in favor of protecting the species, despite the defendants' argument that an injunction could discourage investment in wildlife conservation efforts. The court notes that the defendants' claims are based on an assumption regarding the relevance of the WEST study over the PSG Protocol. Consequently, the court finds that the fourth Winter factor aligns with the success on the merits and also supports preserving the status quo.
No bond will be required from the plaintiffs, as federal courts typically waive bond requirements in environmental cases to avoid chilling effects on public interest litigation. The court grants the plaintiffs' motion for a preliminary injunction, prohibiting the defendants from further activities on the Benson Ridge parcel related to the Benson Snake or Little Benson project, remaining in effect until the court resolves future motions or the case otherwise concludes. The plaintiffs have presented expert testimony from Dr. Richard Golightly, a seabird expert, further supporting their position. The Ninth Circuit's precedent indicates that the balance of hardships and public interest always favors an injunction in cases involving procedural and substantive violations under the ESA.
