Court: District Court, D. Oregon; July 5, 2018; Federal District Court
Plaintiff environmental organizations are seeking a permanent injunction against defendant logging companies to prevent logging in the Benson Snake Parcel of the Elliott State Forest, which they claim is occupied habitat for the threatened marbled murrelet under the Endangered Species Act (ESA). The plaintiffs assert that logging this area would lead to a "take" of the marbled murrelet, violating Section 9 of the ESA. The defendants have filed a motion to dismiss the lawsuit, arguing that the plaintiffs did not provide sufficient pre-suit notice as required by statute.
The case highlights the marbled murrelet's reliance on mature and old-growth forests for nesting and breeding, with a history of being listed as threatened since 1992 in Washington, Oregon, and California due to habitat loss primarily from commercial timber harvesting. Previously, in a related case (Cascadia Wildlands v. Kitzhaber), the court granted a preliminary injunction against certain logging activities, leading to the cancellation of pending logging operations in occupied murrelet areas. After the case settled in 2014, the State of Oregon planned to auction off land, including the Benson Ridge Parcel, without having conducted surveys for murrelets. In March 2014, plaintiffs warned Scott Timber and other logging companies that any logging in occupied or suitable habitats for marbled murrelets would violate the ESA, leading to potential "take" of the species.
The State of Oregon has canceled all logging activities in marbled murrelet habitat on the Elliott State Forest due to litigation and the associated liabilities concerning threatened species. The state is selling these lands, which poses potential liability under the Endangered Species Act (ESA) for any future owners. The intention is to pursue litigation against any purchasers to prevent logging and other harmful practices in suitable or occupied marbled murrelet habitats. The letter outlines that the Elliott State Forest is a crucial area for marbled murrelets, with surveys indicating near-total occupancy of suitable habitat. In 2013, the state canceled fifteen of sixteen planned timber sales due to murrelet occupancy. Limited surveys on parcels for sale detected significant murrelet occupancy, with substantial suitable habitat present. The auction for these parcels closed on April 11, 2014, with Scott Timber winning the Benson Ridge Parcel. Following the auction, a 2014 Notice was sent to Scott Timber and Seneca Sawhill Company, reiterating previous concerns and highlighting that both companies are logging entities likely to clearcut occupied habitats, thus increasing the risk of logging in these sensitive areas.
Copies of a March letter and the 2014 Notice were sent to the Secretary of the Interior and the Oregon State Director of the Fish and Wildlife Service. On June 4, 2014, the State of Oregon transferred the Benson Ridge Parcel to Scott Timber. Scott Timber responded to the 2014 Notice on June 9, indicating no immediate plans for timber harvesting on the Benson Ridge or Adams Ridge parcels, with future decisions contingent upon extensive surveying and planning, potentially taking two to three years. Scott Timber asserted that the 60-day notice did not present a justiciable controversy.
Two years later, on August 13, 2016, Roseburg Resources Company submitted a Notification of Operations/Permit to Operate Power-Driven Machinery to clear-cut the Benson Snake parcel within the Benson Ridge Parcel. Plaintiffs became aware of the logging plans on August 19, 2016, and filed a lawsuit against Scott Timber and Roseburg Forest Products on August 25, 2016, claiming a violation of Section 9 of the Endangered Species Act (ESA) and seeking a preliminary injunction to halt logging. Scott Timber agreed to pause logging until the injunction motion was resolved.
On October 12, 2016, the U.S. Fish and Wildlife Service contacted Scott Timber regarding the harvest operation and offered technical assistance related to marbled murrelet conservation. During the November 22, 2016 hearing on the injunction, Scott Timber contended the court lacked jurisdiction due to inadequate pre-suit notice per ESA requirements. On December 19, 2016, the court granted the plaintiffs' motion for a preliminary injunction, noting the issue of pre-suit notice in the opinion and order.
Defendants claim that plaintiffs failed to provide valid notice under the Endangered Species Act (ESA), arguing that notice given in 2014 was inadequate because the Benson Snake project was not yet planned. Plaintiffs counter that anticipatory notice is permissible under Section 9 of the ESA, which aims to prevent harm to listed species before it occurs. The ESA mandates that plaintiffs give written notice at least sixty days before filing a lawsuit, and this notice serves as a jurisdictional requirement. While plaintiffs are not obligated to detail every alleged violation, the overall sufficiency of the notice is key, allowing courts to assess both the notice itself and the defendants’ understanding of it.
The court found plaintiffs' notice valid, as it was sent sixty days prior to the lawsuit's initiation. Although the notice predated the specific harvest plan, the defendants, being logging companies, were aware of potential timber harvests in the area where marbled murrelets breed. The court noted that the defendants were sufficiently informed of plaintiffs' intent to sue, even without detailed project information. Furthermore, defendants' subsequent actions, including commissioning a study to address plaintiffs' concerns about marbled murrelet usage, indicated they had the opportunity to mitigate violations.
In subsequent developments, plaintiffs sent a 'Supplemental Notice of Intent' in 2018 that referenced the Benson Snake project, followed by a First Amended Complaint. On remand from the Ninth Circuit, the parties opted for an expedited trial rather than relitigating the preliminary injunction. A bench trial was scheduled for August 6, 2018, and defendants filed a motion to dismiss for lack of jurisdiction, which this opinion addresses. Under Federal Rule of Civil Procedure 12(b)(1), the court can examine jurisdictional facts beyond the pleadings, with the burden on the party invoking jurisdiction to prove its existence.
Plaintiffs must provide written notice to the Secretary of the Interior and any alleged violator at least sixty days before initiating a citizen suit under the Endangered Species Act (ESA). This notice is intended to inform the agencies of a perceived violation and allows them the opportunity to address the issue before litigation. In the Ninth Circuit, this sixty-day notice is considered a jurisdictional requirement; failure to comply bars any lawsuit under the ESA.
Defendants contend that the 2014 Notice did not fulfill the statutory pre-suit notice requirements. Plaintiffs argue against this motion, claiming that a prior ruling deemed the 2014 Notice adequate, invoking the law of the case doctrine, which maintains that established rulings govern subsequent related issues. However, this doctrine does not apply to jurisdictional matters, which are essential to a court's authority to hear a case.
While there is a divide among federal courts regarding the jurisdictional nature of the ESA's pre-suit notice, the Ninth Circuit's stance is clear: it is jurisdictional. The Supreme Court has indicated that the notice is "mandatory" but did not definitively categorize it as jurisdictional. The Fifth Circuit ruled similarly, stating pre-suit notice is mandatory but not jurisdictional, allowing for potential waiver. Despite differing opinions, the Ninth Circuit's precedent obligates adherence to the view that pre-suit notice is jurisdictional, thus allowing defendants' motion to dismiss based on non-compliance with this requirement.
Pre-suit notice is not a jurisdictional requirement; however, applying the law of the case is inappropriate for two reasons. First, the Ranchers Cattlemen's case pertains to how lower courts should apply appellate court determinations regarding preliminary injunctions, which differs from the adequacy of pre-suit notice under the Endangered Species Act (ESA). While the Ninth Circuit reviews notice adequacy de novo—a review standard typically for legal queries—it can also apply to mixed questions of law and fact. The adequacy of notice depends on the content of the notice and the behavior of its recipients, indicating that it requires factual findings. The 2014 Notice must be evaluated de novo to ascertain its compliance with ESA requirements.
Citizen suit provisions aim to balance citizen enforcement benefits against the risk of excessive litigation by allowing government agencies to enforce environmental regulations and giving alleged violators a chance to comply. A plaintiff need not detail every aspect of each alleged violation in the notice; reasonable specificity regarding the nature and timing of violations suffices. Defendants claim the 2014 Notice is invalid for lacking sufficient detail about the specific violation—the proposed clear-cut of the Benson Snake Parcel. Their hypertechnical interpretation is unsupported by statutory language or precedent. The question is whether the notice adequately informed the defendants and government agencies of the violation being challenged. This requires a fact-specific inquiry.
The conclusion drawn is that a reasonable logging company, like Scott Timber, would have comprehended the violation from the 2014 Notice, and Scott Timber indeed understood it. The notice must be contextualized within the Kitzhaber case, prior injunctions, and Oregon's land sale decision, along with the plaintiffs’ long-standing advocacy for the marbled murrelet. Scott Timber was aware of the injunction against government defendants due to its involvement in the Kitzhaber lawsuit and knew that the auctioned land tracts were likely marbled murrelet habitats. Upon learning of Scott Timber's intent to bid, the plaintiffs promptly informed them of the Kitzhaber litigation's history and indicated their intent to sue under the ESA if logging activities were conducted in murrelet-occupied areas.
Plaintiffs expressed concerns about murrelet occupation and potential logging on the Benson Ridge parcel after learning that Scott Timber was the winning bidder. They reasonably inferred that Scott Timber, a logging company, intended to log the parcel. The court distinguishes this situation from a hypothetical broad letter that lacks specific geographic references, affirming that the 2014 Notice provided adequate detail regarding potential violations. Scott Timber's actions, including hiring an expert for a murrelet occupancy study, indicated an understanding of the alleged violations, countering claims that they lacked sufficient notice. While defendants argued that the Fish and Wildlife Service's delayed technical assistance suggested inadequate notice, the court found this argument weak, emphasizing that the agency was still alerted to the opportunity for action based on the notice provided. Defendants also contended that the 2014 Notice was premature, filed one day before Scott Timber acquired the parcel. However, the court noted that there is no strict prohibition against anticipatory notice under the Endangered Species Act (ESA) and that the statute's intent allows for citizen suits to prevent imminent harm to protected wildlife. The court referenced a Colorado district court case that supports the validity of pre-suit notices, stating the key consideration is whether the notice adequately described the challenged activities. The court adopted this reasoning, concluding that the plaintiffs’ notice was sufficient.
The 2014 Notice provided adequate information to alert Scott Timber and relevant governmental agencies of a specific violation of the Endangered Species Act (ESA). Defendants argue that the statutory context implies Congress intended that the notice must precede only past violations, citing a provision that prohibits actions to compel the Secretary regarding ESA duties until sixty days after written notice, with an emergency exception. They contend that the absence of a similar emergency exception in the citizen suit provision indicates a rejection of pre-suit notice for prospective violations. However, the text of 16 U.S.C. 1540(g)(2)(C) does not limit pre-suit notice to past violations, as citizen suits can seek prospective injunctive relief to prevent imminent violations.
Defendants further reference regulations governing the Fish and Wildlife Service’s civil penalties, which require notice of violation before penalties can be assessed. They argue these regulations inform the meaning of 'violation' in 1540(g)(2)(A)(i), suggesting that violations must occur prior to notice. The argument is countered by the notion that injunctions address ongoing or imminent harm, necessitating a different standard for defining violations.
Finally, defendants claim that plaintiffs assert an effective pre-suit notice can only follow a logging company’s Notice of Activity Proposal (NOAP) for logging projects in Oregon. This assertion is deemed irrelevant and inaccurate, as plaintiffs' views on pre-suit notice in other contexts do not bind their positions in this case. Furthermore, while plaintiffs have expressed challenges regarding pre-suit notice in the context of logging on private lands, it does not equate to a concession that compliant pre-suit notice cannot be issued before a NOAP is filed.
Special circumstances, specifically the prior federal lawsuit involving the same parties and the status of the forests as former public lands, have provided plaintiffs with enhanced access to information regarding private logging companies’ plans. This information enabled them to issue a sufficiently specific pre-suit notice. The court ruled that the 2014 Notice, although served only on Scott Timber, was effective for Roseburg Resources and RLC Industries, as RLC is the parent company of Scott Timber and Roseburg Resources. Under the ESA, serving notice on a subsidiary or related companies fulfills the pre-suit notice requirement. While the 2018 Notice was deemed good practice, it was not necessary for jurisdictional purposes. The court denied the defendants' Motion to Dismiss for Lack of Jurisdiction. Additionally, the court confirmed findings on three of the four prongs of the preliminary injunction test but remanded the case due to the absence of a determination regarding the presence of marbled murrelets in the Benson Snake parcel, which depends on the credibility of competing expert testimonies. The appellate court noted that it could not ascertain the likelihood of irreparable harm without this determination. Both parties agreed that the adequacy of the 2014 Notice is critical for establishing subject matter jurisdiction, and if found inadequate, the 2018 Notice cannot rectify its deficiencies.
