In 1998, EPIC and Sierra Club had obtained a verbal preliminary injunction in federal court against three Pacific Lumber (PL) logging plans. The injunction was based on the application of Section 7(d) of the Endangered Species Act (ESA), which restricts an applicant for a Habitat Conservation Plan from making irretrievable commitments of resources while in consultation with the agencies over the terms of the Plan. In the case of PL, continued logging in sensitive areas would have foreclosed the possibility that such areas could be set aside under the Habitat Conservation Plan (HCP) as mitigation for impacts to endangered species.

In March 1999, U.S. District Court Judge Marilyn Patel issued a formal written order confirming the preliminary injunction and holding that Section 7(d) did indeed apply to private parties engaged in HCP consultation with federal agencies. After the consultation period came to a close, the Judge ruled that our case had become moot.

Although this ruling went in PLs favor, it also contained language strengthening the judges previous rulings concerning the merits of our claim. Pacific Lumber, disliking this language, appealed its own victory to the Ninth Circuit Court of Appeals. EPIC and Sierra Club also filed an appeal on PLs mootness claim. Oral arguments were heard on November 13th, and we are currently awaiting a decision from the Court.

This case, if affirmed by the 9th Circuit, could set a dramatic precedent affecting HCP applications nationwide. Logging companies in Northern California have already slowed their once-vigorous efforts to obtain HCPs and associated permits to kill endangered species. Agency personnel often cite our litigation as a reason for their reluctance. The important implication of this case is that corporations applying for HCPs cannot rush out and liquidate habitat that would potentially be part of the plans protections. This case clarifies the ESA Section 7(d) call for no irreversible & irretrievable commitment of resources while in consultation with the federal agencies over the scope of protections developed in the prospective HCP.

Interestingly, as the 7(d) case wound its way through federal court, EPIC staff attorney, Sharon Duggan provided substantial assistance to Mattole Valley rancher Michael Evenson, who sought an injunction on his own behalf against two of the same logging plans in state court. Mr. Evensons successful efforts ultimately led to the approval of these plans being overturned by the court. EPIC's case protected this area until Mr. Evenson's case could be heard.