Marbled Murrelet and EPIC v. Pacific Lumber (Owl Creek Federal Case)

Marbled Murrelet and EPIC v. Pacific Lumber (Owl Creek Federal Case)

1993

In EPIC’s first federal Endangered Species Act case, the court determined that Pacific Lumber’s plans to log 237 acres of contiguous old-growth forest in Owl Creek under THP 1-90-237 HUM would violate section 9 of the ESA by harassing and harming the threatened marbled murrelet. Thus, the court permanently enjoined the company from executing its logging plan. EPIC’s suit was precedent-setting, the first time the ESA was applied to stop logging on private forest land to conserve the habitat of an endangered species. The district court judge noted that “EPIC has served the public interest by assisting the interpretation and implementation of the ESA.” On 10/1/92 the U.S. Fish & Wildlife Service listed the marbled murrelet as threatened with extinction. Despite the ESA’s clear prohibition against injuring or killing listed species, Pacific Lumber resumed logging in the murrelet occupied Owl Creek grove during Thanksgiving weekend, 1992, stopping only after EPIC received an Emergency Stay from the California Court of Appeal. In March 1993, Pacific Lumber removed the timber it had illegally cut in November, netting $1,000,000 from its illegal acts. EPIC then filed suit in federal court in April 1993. EPIC received a Preliminary Injunction on February 2, 1994 and a permanent injunction a year later on February 27, 1995. The Ninth Circuit U.S. Court of Appeals affirmed the district court judgment May 7, 1996. On February 18, 1997 the U.S. Supreme Court refused to hear Pacific Lumber’s final appeal. EPIC alleged that the acts of Pacific Lumber in their logging of Owl Creek constituted a ‘take’ in violation of the federal and state Endangered Species Acts. EPIC alleged that logging as planned would either significantly disrupt the marbled murrelet’s normal behavioral patterns or actually injure or kill murrelets, because it would increase the chance of murrelet predation and remove the nesting habitat the murrelet needs. The court found that EPIC had proved that Owl Creek is suitable habitat for the marbled murrelet, that murrelets are nesting in THP 237, and that this logging plan would both significantly disrupt normal behaviors and would actually kill or injure murrelets. The court noted that Pacific Lumber was committed to cutting trees at all costs and had used fraudulent wildlife surveying techniques. This suit was brought by EPIC on behalf of the Marbled Murrelet against Bruce Babbitt, Secretary, Department of the Interior, John Turner, Director, U.S. Fish and Wildlife Service, Marvin Plenert, USFWS Region 1 Director, the U.S. Fish and Wildlife Service, the Pacific Lumber Company, the California State Board of Forestry, CDF, and the California Department of Fish and Game.

Procedure: Suit filed in U.S. District Court 4/16/93 (C-93-1400, Judge Fern M. Smith). On 9/1/93 EPIC’s claims against federal and state defendants, as well as claims under the California Endangered Species Act dismissed. Judge Fern Smith issued Preliminary Injunction 2/2/94. Before trial, Pacific Lumber was sanctioned $6,275 for withholding information from EPIC. Trial held August 15-24 and September 6-9, 1994 before visiting Judge Louis Bechtle. District Court found that this THP would both ‘harass’ and ‘harm’ the marbled murrelet in violation of the federal Endangered Species Act. On 2/27/95 District Court permanently enjoined Pacific Lumber from implementing THP 237 (decision published at 880 F. Supp.1343), awarding EPIC costs, attorney and expert witness fees totaling over one million dollars (published at 163 FRD 308). EPIC’s appeal of the dismissal of state and federal defendants was dismissed by the 9th Circuit (#94-15194) in July 1995 on procedural grounds. Pacific Lumber appealed the Injunction in November 1995. Appeal heard 3/14/96. Ninth Circuit affirmed district court judgment 5/7/96 (83 F.3d 1060). Pacific Lumber Petition for Reconsideration denied by Court of Appeal, 6/26/96. Pacific Lumber filed Petition for Writ of Certiorari to U.S. Supreme Court.

Status: final – 2/18/97 U.S. Supreme Court declined to consider Pacific Lumber’s appeal, giving EPIC and the Marbled Murrelet final victory.

Attorneys: Mark P. Harris, Macon Cowles, Susan O’Neill, Charles S. Crandall, William A. Rossbach, Brian Gaffney, Rodney Jones, John Paul Graff, Stephan Volker (Sierra Club Legal Defense Fund).

EPIC Contacts: Cecelia Lanman, Jamie Romeo.