Marbled Murrelet, Northern Spotted Owl and EPIC v. Bruce Babbitt, et al. (Federal Exemption Suit)

Marbled Murrelet, Northern Spotted Owl and EPIC v. Bruce Babbitt, et al. (Federal Exemption Suit)

1995

On March 1, 1995, three days after the Owl Creek decision permanently enjoined a logging plan in that murrelet-occupied ancient grove, Pacific Lumber announced plans to “salvage” log the murrelet-occupied Headwaters Forest through “exemptions” to the Forest Practice Rules. Two other exemptions had been quietly filed earlier, leaving all of Pacific Lumber’s 187,000 acres, including vast tracts of ancient forest and proposed murrelet critical habitat, open to salvage logging. Under public pressure, the U.S. Fish and Wildlife Service prohibited operations during murrelet breeding season. EPIC brought suit alleging federal agency action and the need for a biological assessment or biological opinion under Section 7 of the Endangered Species Act and an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA). Further, EPIC alleged that such timber operations would cause a “take” of listed species in violation of Section 9 of the ESA. EPIC amended our complaint, 3/20/96, to include claims against eight Pacific Lumber timber harvest plans (THPs) approved under a Northern Spotted Owl Management Plan in concurrence with the FWS. Unable to maintain restraining orders with the court, EPIC dismissed the ESA section nine claim in January 1997. Remaining claims, including one under section seven of the ESA arguing that the U.S. Fish and Wildlife Service must undertake a full biological opinion and jeopardy call, were dismissed by the court in June 1997. Pacific Lumber asked the court for $47,000 in costs plus $600,000 in attorney fees from EPIC. EPIC’s opposition included amicus briefs from other environmental groups that would be affected by such bad precedents. This suit was filed against Bruce Babbitt, Secretary, Department of the Interior; Mollie Beattie, Director, USFWS; Michael Spear, Region 1 Director, USFWS; the U.S. Fish and Wildlife Service; The Pacific Lumber Company; Scotia Pacific Holding Company; and the Salmon Creek Corporation.

Procedure: Complaint filed and Temporary Restraining Order on exemption operations (under section 7) issued 9/15/95 in U.S. District Court (C-95-3261, Judge Maxine M. Chesney); Preliminary Injunction granted 9/29/95 (under section 7). TRO on eight THPs received 3/18/96 (under section 7) (reassigned Judge Louis Bechtle); Preliminary Injunction issued 4/3/96. U.S. Court of Appeals, Ninth Circuit reversed Preliminary Injunction on exemptions (Section 7) and remanded case back to the district court, 5/7/96 (83 F.3d 1068). EPIC filed Renewed Motion for Preliminary Injunction on exemptions (Section 7) 8/26/96. EPIC filed Ex Parte Motion for TRO (Section 7) 9/12/96; denied 9/17/96. EPIC moved for TRO (Section 7) 9/13/96; denied 10/2/96. After operations began and apparent violations had occurred, EPIC filed Ex Parte Motion to Enforce Order Denying TRO and for TRO, 10/11/96; denied 10/15/96. EPIC filed Renewed Motion for TRO (Section 7) and/or Expedited Motion for Preliminary Injunction, 10/17/96; denied 10/22/97. EPIC dismissed ESA Section 9 claim with prejudice 1/6/97. Preliminary Injunction on eight THPs overturned by 9th Circuit, 4/18/97 (111 F.3d 1447). Defendants’ motions for Summary Judgment on Section 7 were granted by USDC 6/18/97.

Attorneys: Thomas Lippe, Sharon Duggan, and Mark Harris.

EPIC Contacts: Cecelia Lanman, Jamie Romeo.