Defenders of Wildlife v. Bernal

• Decision Date: 28 February 2000
• Docket Number: No. 98-16099,98-16099
• Parties: (9th Cir. 2000) DEFENDERS OF WILDLIFE; SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs-Appellants, v. MIKE BERNAL; ROBERT SMITH, Dr.,Superintendent; BOARD, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 920

204 F.3d 920 (9th Cir. 2000)

DEFENDERS OF WILDLIFE; SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs-Appellants, v. MIKE BERNAL; ROBERT SMITH, Dr.,Superintendent; BOARD, Defendants-Appellees.

No. 98-16099

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 7, 1998

Memorandum Filed November 23, 1999

Order Filed February 28, 2000

[Copyrighted Material Omitted]

COUNSEL: Eric Glitzenstein, Meyer & Glitzenstein, Washington, D.C. and John Fritschie, Defenders of Wildlife, Washington, D.C., for the plaintiffs-appellants.

Denise M. Bainton, DeConcini McDonald Yetwin & Lacy, Tucson, Arizona, for the defendants-appellees.

James Dougherty, Washington, D.C., and Alex Levinson, San Francisco, California, for amicus National Wildlife, et al.

Diana Boros, Tucson, Arizona, for amicus Ad-Hoc Land Search Committee.

David T. Hardy, Tucson, Arizona, for amicus Washington Legal Foundation.

Appeal from the United States District Court for the District of Arizona Frank R. Zapata, District Judge, Presiding. D.C. No. CV-98-00120-FRZ

Before: Procter Hug, Jr., Chief Judge, Betty B. Fletcher, and Stephen S. Trott, Circuit Judges.

Opinion by Chief Judge Hug; Concurrence by Judge B. Fletcher

ORDER

HUG, Chief Judge:

The Memorandum disposition filed November 23, 1999, is redesignated as an authored Opinion by Chief Judge Hug with a concurrence by Judge B. Fletcher.

OPINION

Defenders of Wildlife and the Southwest Center for Biological Diversity (collectively "Defenders") appeal the district court's order lifting a temporary restraining order and denying their motion for a permanent injunction to halt the construction of a new school on property which Defenders contend contains potential habitat for the cactus ferruginous pygmy owl (pygmy-owl), listed as endangered under the Endangered Species Act (ESA), 16 U.S.C. SS 1531-1543. At issue in this case is whether the construction of a critically-needed new high school by the Amphitheater School District (the School District) in northwest Tucson will result in the "take" of the endangered pygmy-owl in violation of section 9 of the ESA, 16 U.S.C. S 1538(1)(B).

After a three-day bench trial the district court found that the proposed construction would not result in the take of a pygmy-owl and denied the permanent injunction. In this appeal Defenders assert that the district court (1) erroneously concluded that plaintiffs failed to meet their burden of proof, (2) should have required the School District to apply for an incidental take permit, (3) inappropriately excluded expert testimony and (4) incorrectly denied Defender's Motion for a New Trial. We have jurisdiction over final judgments of the district court pursuant to 28 U.S.C. S 1291, and we affirm.

I. Factual and Procedural Background

In 1994, the School District paid $1.78 million to purchase a 73 acre site in northwest Tucson, upon which a new high school would be built. The high school complex is intended to accommodate 2,100 students and is composed of several buildings, athletic fields and parking areas for students, faculty and visitors. In December 1994, after the purchase of the school site, the United States Fish and Wildlife Service (FWS) formally published a proposed rule to list the pygmyowl as an endangered species under the ESA. On March 10, 1997, after the required procedures and commentary period, the FWS listed the pygmy-owl as an endangered species under the ESA.

The pygmy-owl is a small reddish brown owl known for its relatively long tail and monotonous call which is heard primarily at dawn and dusk. The pygmy-owl nests in a cavity of a large tree or large columnar cactus. Its diverse diet includes birds, lizards, insects, and small mammals and frogs. The pygmy-owl occurs from lowland central Arizona south through portions of western Mexico and from southern Texas south through other portions of Mexico on down through portions of Central America.¹ The FWS indicates that there are a total 54,400 acres of suitable pygmy-owl habitat in northwest Tucson, which includes the 73 acre school site. The school site falls within the area designated by the FWS as critical habitat for the pygmy owl. See 64 Fed. Red. 37,419 (1999).²

Within the 73 acre parcel acquired by the School District in 1994, there are three "arroyos", defined as "dry washes" or "ephemeral desert waterways". The U.S. Army Corps of Engineers designated the arroyos as "jurisdictional waters" pursuant to the Clean Water Act, 33 U.S.C. S 1251 et seq. The original design of the School District complex called for some construction within the "jurisdictional waters", thereby requiring the School District to obtain a permit under the Clean Water Act. Because a federal permit was at issue, the FWS informed the Corps that "formal consultation" pursuant to section 7 of the ESA was required to assess the impact of the proposed project on the pygmy-owl.³ Consultation was initiated, but before completion of the process the School District withdrew its application for the permit because it had redesigned the project so that construction would not affect the jurisdictional waterways. As a result of the redesigned project, no development is planned for the 30 acres containing the arroyos in the western portion of the property. The School District has acquired or will acquire 17 acres to the east of the initially acquired property for utilization in the redesigned school project. Thus, the entire school site is 90 acres, including the 30 acres containing the arroyos. The 30 acre parcel will remain undeveloped and fenced off. For ease in identification in this opinion, the entire 90 acre parcel will be referred to as the "school site." The 60 acres upon which the school complex is designed to be built will be referred to as the "60 acre parcel". The undeveloped 30 acre parcel, which contains the arroyos, will be referred to as the "30 acre parcel".

In March 1998, the School District began plant salvaging operations as a precursor to beginning construction. Defenders immediately filed suit seeking a temporary restraining order and a preliminary injunction against the School District to prevent any action on the school site. Defenders alleged that the proposed construction violated Section 9 of the ESA because it was likely to harm or harass a pygmy-owl, which Defenders assert inhabit or use the site. Section 9 of the ESA applies to private parties, whereas Section 7 of the ESA, which had earlier been resolved, applies only to actions carried out, funded, or authorized by a federal agency. The district court entered a temporary restraining order. The court later consolidated the hearing on Defenders' request for a preliminary injunction with the trial on the merits. Following a three-day trial, the district court issued its final order, denying the request for a permanent injunction, and lifting the temporary restraining order. We granted Defenders' motion for an injunction pending appeal.

II. Statutory Framework

Section 9 of the ESA makes it unlawful to "take " a species listed as endangered or threatened. See 16 U.S.C. S 1538(a)(1)(B). "The term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." 16 U.S.C. S 1532(19). The take alleged is that the proposed construction will harass or harm the pygmy-owl. The Department of the Interior has promulgated a regulation further defining harm and harass as follows:

Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or deg radation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

Harass in the definition of "take" in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoy ing it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering . . . .

50 C.F.R. S 17.3.

Harming a species may be indirect, in that the harm may be caused by habitat modification, but habitat modification does not constitute harm unless it "actually kills or injures wildlife." The Department of Interior's definition of harm was upheld against a facial challenge to its validity in the case of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995). In upholding the definition of "harm" as encompassing habitat modification, the Supreme Court emphasized that "every term in the regulation's definition of `harm' is subservient to the phrase `an act which actually kills or injures wildlife.' " Id. at 700 n. 13.

Three months prior to the Sweet Home decision we held in Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir. 1995), that habitat modification that is reasonably certain to injure an endangered species by impairing their essential behavioral patterns satisfied the actual injury requirement and was sufficient to justify a permanent injunction. In a subsequent action, it was contended that Sweet Home had overruled Rosboro and that an actual violation of the ESA was required before an injunction could issue. However, in Marbled Murrelet v. Babbit , 83 F.3d 1060, 1066 (9th Cir. 1996), we held that the Supreme Court's decision in Sweet Home does not overrule Rosboro and that a reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section 9 of the ESA.

III. Harm and Harassment Claims

In order to prevail in this action Defenders had to prove that the School District's actions would result in an unlawful "take" of a pygmy-owl. An injunction would be appropriate relief. See Marbled Murrelet, 83 F.3d at 1064. Defenders had the burden of proving by a...