Forest Conservation Council v. Rosboro Lumber Co.

• Decision Date: 24 March 1995
• Docket Number: No. 94-35070,94-35070
• Citation: 50 F.3d 781
• Parties: 25 Envtl. L. Rep. 20,706 FOREST CONSERVATION COUNCIL, Plaintiff-Appellant, v. ROSBORO LUMBER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 781

50 F.3d 781

25 Envtl. L. Rep. 20,706

FOREST CONSERVATION COUNCIL, Plaintiff-Appellant, v. ROSBORO LUMBER COMPANY, Defendant-Appellee.

No. 94-35070.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 12, 1995.

Decided March 24, 1995.

Gary K. Kahn, Reeves, Kahn and Eder, Portland, OR, for plaintiff-appellant.

Steven P. Quarles, Crowell & Moring, Washington, DC, for defendant-appellee.

Jeffrey P. Kehne, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for amicus curiae.

Appeal from the United States District Court for the District of Oregon.

Before: PREGERSON, TROTT, Circuit Judges, and FITZGERALD, ^* Senior District Judge.

PREGERSON, Circuit Judge:

Plaintiff-Appellant Forest Conservation Council ("FCC") appeals the district court's order granting summary judgment in favor of Defendant-Appellee Rosboro Lumber Company ("Rosboro"). FCC sued Rosboro under the citizen suit provision of the Endangered Species Act, 16 U.S.C. Sec. 1540(g)(1)(A), for violating 16 U.S.C. Sec. 1538(a)(1)(B), which prohibits the "taking" of a federally listed threatened species without a permit from the United States Fish and Wildlife Service. The district court concluded that FCC's claim of a future injury to a pair of Northern Spotted Owls was insufficient to establish an actionable taking under 16 U.S.C. Sec. 1538(a)(1)(B). We have jurisdiction under 28 U.S.C. Sec. 1291. We reverse and remand.

BACKGROUND

On May 2, 1992, Defendant-Appellee Rosboro Lumber Company applied to the Oregon Department of Forestry for a permit to harvest timber on private lands in Lane County, Oregon. The application indicated that Rosboro planned to clearcut approximately 40 acres of timber. The application also noted that the activity would occur in an area that was a "threatened or endangered species site."

The Oregon Department of Forestry granted the permit, and prepared a forest activity inspection report. The report noted that Rosboro's proposed activity would occur on land adjacent to the 1991 nesting site of a pair of Northern Spotted Owls. The report also noted that compliance with the state's forest practice rules would not necessarily satisfy the requirements of the Endangered Species Act ("ESA"), 16 U.S.C. Secs. 1531-1540 (1988).

To cut the timber on private lands, Rosboro needed to travel over land administered by the Federal Bureau of Land Management ("BLM"). Accordingly, Rosboro sought permission from BLM to build a road over its land. In June 1991, BLM authorized Rosboro to build the access road. ¹ But BLM noted in an environmental assessment that the proposed project will occur in forested lands in the Swartz Creek area that have been identified as habitat for a pair of Northern Spotted Owls. The assessment indicated that Rosboro's road construction work would occur within a half mile of the Swartz Creek owls' nesting site. The record shows that the timber harvest on Rosboro's land would occur even closer to the owls' nesting site. Accordingly, BLM informed Rosboro that its proposed project, "may result in an incidental take of the Swartz Creek owl pair and/or a juvenile owl."

The Endangered Species Act provides that "with respect to any endangered species of fish or wildlife ... it is unlawful for any person ... to take any such species." 16 U.S.C. Sec. 1538(a)(1)(B). This provision has been extended to "threatened" species. 50 C.F.R. Sec. 17.31(a) (1993). The northern spotted owl "is threatened throughout its range by the loss and adverse modification of suitable habitat as the result of timber harvesting." 55 Fed.Reg. 26114 (1990).

An exception to the federal ban on the taking of protected wildlife is found in 16 U.S.C. Sec. 1539(a). This section allows anyone Rosboro did not apply for an incidental take permit and proceeded to build the access road in the summer of 1992. On September 9, 1992, Plaintiff-Appellant Forest Conservation Council ("FCC") sued Rosboro in the United States District Court for the District of Oregon, seeking to enjoin Rosboro from clearcutting the timber on private lands. Pursuant to the citizen suit provision of the ESA, 16 U.S.C. Sec. 1540(g)(1)(A), FCC alleged that because Rosboro failed to apply for an incidental take permit, its proposed activity constitutes a "take" in violation of 16 U.S.C. Sec. 1538(a)(1)(B). FCC proffered evidence to show that Rosboro's planned timber harvest is reasonably certain to injure the Swartz Creek owl pair by significantly impairing their essential behavioral patterns, including breeding, feeding, and sheltering.

who plans to undertake activity that will result in an "incidental take" of an endangered or threatened species to apply for a permit from the United States Fish and Wildlife Service ("FWS"). In granting access over the BLM land, BLM advised Rosboro of its responsibility to obtain an incidental take permit from FWS before carrying out its project. BLM also informed FWS that Rosboro's road construction and timber harvest on private lands may result in an incidental take.

FCC and Rosboro filed cross motions for summary judgment. On November 18, 1993, the district court denied FCC's motion for summary judgment and granted Rosboro's motion for summary judgment. The district court concluded that the ESA requires a plaintiff to show either a past or current injury to a protected species, unless the challenged action threatens that species with extinction. Because FCC only alleged a future injury to the Swartz Creek owl pair, and did not allege that Rosboro's activity will threaten the extinction of the Northern Spotted Owl, the district court concluded that FCC's suit was premature. FCC now appeals.

ANALYSIS

We review a grant of summary judgment de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. The interpretation of a statute is a question of law reviewed de novo. Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir.1993).

Because applying for an incidental take permit is not mandatory, and FCC has conceded as much, the issue we address on appeal is whether the district court correctly interpreted the ESA to foreclose citizen suits that only allege a future injury to a protected species. We conclude that the district court misconstrued the ESA.

The district court's construction is antithetical to the basic purpose of the ESA to protect endangered and threatened species and prevent their further decline. The language and legislative history of the ESA, as well as applicable case law support our holding today that a showing of a future injury to an endangered or threatened species is actionable under the ESA.

Congress enacted the Endangered Species Act in 1973 in response to growing public concern about extinctions of various species of fish, wildlife, and plants caused by economic growth and development untempered by adequate concern and conservation. 16 U.S.C. Sec. 1531(a). 16 U.S.C. Sec. 1538 makes it unlawful for anyone to "take" any endangered or threatened ² species. "Take" is defined to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. Sec. 1532(19).

The dispute we are called upon to resolve is the scope of the term "harm." Rosboro contends that "harm" only includes actions that constitute a past or current injury to an endangered or threatened species, or actions that threaten such species with extinction. FCC, on the other hand, contends that In carrying out our duty of ascertaining and applying the intent of Congress, we must "interpret language in one section of a statute consistently with language of other sections and with the purposes of the entire statute considered as a whole." Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982). For the reasons stated below, we conclude that the ESA's language, purpose, and structure authorize citizens to seek an injunction against an imminent threat of harm to a protected species. With respect to the question whether the ESA proscribes habitat modifications that retard species recovery, we need not reach it because FCC has proffered sufficient evidence to show that Rosboro's logging is reasonably certain to injure the Swartz Creek owl pair by significantly impairing its essential behavioral patterns.

"harm" includes actions that pose an imminent threat of injury to a protected species, including habitat modifications that retard the recovery of such species.

A. The Threat of Imminent Harm to Protected Species

1. Statutory Language

We start with the plain language of 16 U.S.C. Sec. 1538(a)(1)(B), which makes it unlawful for anyone to "take" a protected species. 16 U.S.C. Sec. 1532(19) defines "take" as any action that, inter alia, "harms" wildlife. While Congress did not define "harm," it explicitly intended the term "take" to be construed broadly: "Take" is to be "defined in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." S.Rep. No. 307, 93d Cong., 1st Sess. (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2995.

It is clearly conceivable that one can inflict great harm on a protected species by creating an imminent threat of harm to that species. Such a threat therefore falls easily within the broad scope of Congress' definition of "take."

Nevertheless, Rosboro relies on the Secretary of the Interior's ("Secretary") definition of "harm" for the proposition that plaintiffs can seek an injunction only against injuries that have already occurred, or that are presently ongoing. In 1981, the Secretary promulgated a re-definition of "harm" as...