255 F.3d 1073 (9th Cir. 2001), 99-15896, Envt'l Protection Information Center v. The Simpson Timber Co.

Docket Nº:99-15896
Citation:255 F.3d 1073
Case Date:July 09, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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255 F.3d 1073 (9th Cir. 2001)




No. 99-15896

United States Court of Appeals, Ninth Circuit

July 9, 2001

Argued and Submitted October 2, 2000--San Francisco, California

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Neil Levine, Earthlaw, Denver, Colorado, for appellant Environmental Protection Information Center.

Alson R. Kemp, Pillsbury Madison & Sutro, San Francisco, California, for appellees Simpson Timber Company, Simpson Redwood Company and Arcata Redwood Company.

David C. Shilton, United States Department of Justice, Environment & Natural Resources Division, Washington, Dc, for appellee United States Fish and Wildlife Service.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. CV-98-03740-CRB

Before: Dorothy W. Nelson, David R. Thompson and Stephen S. Trott, Circuit Judges.

Opinion by Judge Thompson; Dissent by Judge D.W. Nelson


The Environmental Protection Information Center ("EPIC") filed suit against the United States Fish and Wildlife Service ("FWS") and Simpson Timber Company, Simpson Redwood Company and Arcata Redwood Company ("Simpson"). EPIC alleged that the FWS violated section 7 of the Endangered Species Act ("ESA"), 16 U.S.C.§§ 1536 (1994), by refusing to reinitiate consultation with itself about the effect that an incidental take permit issued to Simpson for the northern spotted owl

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might have on two other species-the marbled murrelet and the coho salmon. The marbled murrelet and the coho salmon were added to the threatened species list after the FWS issued the spotted owl permit to Simpson. EPIC sought an injunction to halt Simpson's logging activities on its 380,000 acres of timberland in northern California until the FWS had reinitiated and completed the sought-after consultation. See 50 C.F.R.§§ 402.16 (2000).

The district court granted Simpson's motion to dismiss the complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).1 The court held that the FWS had not retained sufficient discretionary control over Simpson's incidental take permit to require it to take steps that would benefit the marbled murrelet or the coho salmon, and therefore reinitiation of consultation was not required. EPIC appeals. We have jurisdiction under 28 U.S.C. §§ 1291 (1994) and we affirm.


Section 9 of the ESA makes it unlawful to "take" an endangered species. See 16 U.S.C. §§ 1538(a)(1)(B) (1994). The FWS has extended this prohibition by regulation to include threatened species. See 50 C.F.R.§§ 17.31(a) (2000). The term "take" is defined broadly to mean"harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." 16 U.S.C. §§ 1532(19) (1994). The Secretary of the Interior has interpreted the term "harm" to cover "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. §§ 17.3 (2000). Eliminating a threatened species' habitat thus can constitute "taking" that species for purposes of section 9. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).

Section 7(a)(2) of the ESA requires all federal agencies to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence" of any endangered or threatened species or result in the destruction of critical habitat. 16 U.S.C. §§ 1536(a)(2). The term "action" includes "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies," including the granting of permits. 50 C.F.R. §§ 402.02 (2000). The parties agree that issuing an incidental take permit qualifies as agency action for purposes of section 7(a)(2).

When undertaking an action, an agency (the "action agency") must determine whether the action "may affect" an endangered or threatened species. 50 C.F.R. §§ 402.14(a) (2000). If so, the agency must formally consult with either the FWS or the National Marine Fisheries Service ("NMFS") ("consultation agencies"), depending on which agency is in charge of that species. Id. During consultation the parties cannot make "any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate" section 7(a)(2). 16 U.S.C. §§ 1536(d). After formal consultation, the appropriate consultation agency issues a Biological Opinion evaluating the potential effect on the protected species. If the consultation agency's Biological Opinion concludes that the proposed activity is likely to jeopardize an endangered or

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threatened species, the agency identifies reasonable and prudent alternatives to avoid the action's negative impacts. 16 U.S.C. §§ 1536(a)(2) & (b)(3)(A). If the consultation agency's Biological Opinion concludes that the proposed activity is not likely to jeopardize an endangered or threatened species, then the proposed action is permitted.

The section 7 duty to consult can be ongoing, and consultation must be reinitiated under certain circumstances. An agency is required to reinitiate consultation where

discretionary Federal involvement or control over the action has been retained or is authorized by law and:

(a) If the amount or extent of taking specified in the incidental take statement is exceeded;

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or

(d) If a new species is listed or critical habitat designated that may be affected by the identified action.

50 C.F.R. §§ 402.16 (emphasis added). The duty to reinitiate consultation lies with both the action agency and the consultation agency. See id. Reinitiation of consultation requires either the FWS or the NMFS to issue a new Biological Opinion before the agency action may continue. Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1451 (9th Cir. 1992).


EPIC argues that the FWS's duty to reinitiate consultation has been triggered because that agency retained discretionary involvement or control over the action permitted by Simpson's spotted owl permit, and the marbled murrelet and coho salmon, two species that may be affected by what Simpson does with its permit, have been added to the threatened species list. The marbled murrelet was added to the list in the fall of 1992, several months after the FWS issued the incidental take permit to Simpson. See 50 C.F.R. §§ 17.11(h) (2000). Close to five years later, the NMFS added the coho salmon to the threatened species list. See id. Both the marbled murrelet and coho salmon inhabit Simpson's timberland; however, it is not certain that Simpson's logging activities have had or will have a negative effect on either of them. 2

Simpson's land is also habitat for the northern spotted owl, which the FWS listed as a threatened species in 1990. See id. When that happened, Simpson's logging activities exposed the company to potential liability under section 9 of the ESA for "taking" northern spotted owls. In order to continue its logging operation, Simpson applied for an "incidental take" permit from the FWS under section 10 of the ESA authorizing it to take some northern spotted owls provided "such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. §§ 1539(a)(1)(B) (1994).

As part of the application for its incidental take permit, Simpson was required to submit a Habitat Conservation Plan ("HCP")3 and an Implementation Agreement

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("IA")4. The HCP is an extensive document that explains "(i) the impact which will likely result from [the] taking; (ii) what steps the applicant will take to minimize and mitigate such impacts; and . . . (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan." 16 U.S.C. §§ 1539(a)(2)(A) (1994). The IA outlines how the permit holder will carry out the obligations described in the HCP. These documents then become part of the application and, if the application is approved, are incorporated into the incidental take permit.

Simpson prepared an HCP detailing measures designed to minimize the impact of its logging on the spotted owl, including mitigation measures, reporting requirements, and monitoring by the FWS and state agencies. Simpson also provided research showing that these measures would ensure no significant adverse impact to the spotted owl and that its conservation program would contribute to the survival and recovery of that species. In addition, in its HCP, Simpson promised that the Timber Harvesting Plans ("THPs") it would submit to California's Department of Forestry under California law would include numerous mitigation measures. The HCP states,

In addition to addressing the specific needs of the spotted owl, Simpson's THPs [to be submitted to the California Department of Forestry] will be designed to:

Retain 50 to 70 percent canopy and 50 percent ground cover along Class I and large Class II streams;

Protect ponds, swamps, bogs, and seeps as...

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