Marbled Murrelet v. Babbitt
| Decision Date | 07 May 1996 |
| Docket Number | No. 95-16945,95-16945 |
| Citation | 83 F.3d 1068 |
| Parties | , 26 Envtl. L. Rep. 20,992, 96 Cal. Daily Op. Serv. 3208, 96 Daily Journal D.A.R. 5295 MARBLED MURRELET, (Brachyramphus marmoratus); Northern Spotted Owl, (Strix occidentalis caurina); Environmental Protection Information Center, Plaintiffs-Appellees, v. Bruce BABBITT, Secretary, U.S. Department of Interior; Mollie Beattie, Director, United States Fish and Wildlife Service; Michael Spear, Director, Region 1, United States Fish & Wildlife Service; United States Fish & Wildlife Service, Defendants, and Pacific Lumber Company, a Delaware Corporation; Scotia Pacific Holding Company, a Delaware Corporation; Salmon Creek Corporation, a Delaware Corporation, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jared G. Carter, Behnke & Oglesby, Ukiah, California and David S. Winton, Pillsbury Madison & Sutro, San Francisco, California, for defendants-appellants.
Thomas N. Lippe, San Francisco, California, for plaintiffs-appellees.
James C. Kilbourne and Edward J. Shawaker, Appellate Section, United States Department of Justice, Washington D.C., for defendants-amici.
Appeal from the United States District Court for the Northern District of California, No. CV-95-003261-MMC; Maxine M. Chesney, District Judge, Presiding.
Before: THOMPSON and TASHIMA, Circuit Judges, and WILSON, * District Judge.
The appellants are private corporations engaged in the lumber business. We refer to them collectively as "the Lumber Companies." They wanted to cut and remove dead, dying and decayed trees in California. The United States Fish & Wildlife Service (USFWS) consulted with them and provided them with information as to what they would have to do to avoid a "take" of endangered species under the Endangered Species Act (ESA).
In an effort to stop the intended tree cutting and removal, the plaintiffs filed an action for declaratory relief. They contended that the USFWS had gone beyond providing advice to the Lumber Companies, had assumed authority and control over the intended salvage operation, and as a result had engaged in federal "agency action." Federal agencies engaging in "agency action" are required by section 7 of the ESA, 16 U.S.C. § 1536, to undertake certain procedures, including preparation of a biological assessment and a biological opinion. The USFWS did not do this.
The plaintiffs applied for a preliminary injunction, and the district court granted it. The court determined that the balance of hardships tipped sharply in favor of the plaintiffs and that serious questions existed as to whether the USFWS had engaged in "agency action" which triggered the requirements of section 7 of the ESA. The district court also determined that serious questions existed as to whether the USFWS had engaged in a "major federal action" under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. This Act also requires procedures the USFWS did not undertake, including the preparation of an Environmental Assessment or an Environmental Impact Statement.
The plaintiffs are the Environmental Protection Information Center, the Marbled Murrelet, and the Northern Spotted Owl (collectively EPIC). They filed suit for declaratory and injunctive relief against the federal defendants, Bruce Babbitt, Secretary of the United States Department of Interior, Mollie Beattie, Director of the United States Fish & Wildlife Service, Michael Spear, Director, Region 1, United States Fish & Wildlife Service, and against the USFWS; they also sued the Lumber Companies.
Although there are no state parties in this litigation, the California Department of Forestry and Fire Protection (CDF) was involved in the intended tree salvage pursuant to California's Z'berg-Nejedly Forest Practice Act (FPA). This Act generally requires that before commencing any timber operations in California, a Timber Harvest Plan (THP) must be submitted and approved by the CDF. Cal. Pub. Res.Code §§ 4581-4582.75. Exemptions from these state requirements may be obtained. Id. § 4584. One of these exemptions is for the cutting and removal of "dead, dying and diseased trees" which amount to less than ten percent of the average volume per acre, subject to certain conditions. Id. § 4584(c); Cal.Code Regs. tit. 14, § 1038(b). This exemption, however, does not permit tree cutting or removal in key habitat areas of rare, endangered, or threatened species, or within the buffer zone of such areas. Cal.Code Regs. tit. 14, § 1038(b)(3), (7), & (8).
To obtain a permit to harvest dead, dying and diseased trees, a notice of such proposed timber operation must be submitted to the CDF. Cal.Code Regs. tit. 14, § 1038.1. Within ten days of receipt of the notice, the CDF must determine whether the notice is "complete and accurate." Cal.Code Regs. tit. 14, § 1038(e). If it is complete and accurate, the CDF sends a notice of acceptance to the submitter. Id. If not, the CDF returns the notice to the submitter. Id. If the CDF fails to act within ten days of receipt of the notice, the timber operations may commence. Id.
In the fall of 1994, the Lumber Companies submitted and the CDF accepted two notices of proposed timber operations to salvage dead, dying and diseased trees on two parcels of the Lumber Companies' land. One parcel covered 179,103 acres, the other 12,695 acres. Both parcels are in Humboldt County in Northern California. A few months later, the Lumber Companies submitted, but the CDF did not accept, a similar notice of proposed timber salvage for another 5,994 acre parcel in Humboldt County including Headwaters Forest. Headwaters Forest is a previously unentered, 3,000-acre old-growth redwood stand. In a letter accompanying this notice, the Lumber Companies noted that some of the area might be important to threatened or endangered wildlife.
The CDF returned the notice on March 6, 1995, asking the Lumber Companies to provide the location and habitat of any rare, endangered, or threatened species. Two days later, the Lumber Companies resubmitted the notice, with five additional pages of information designating particular areas as possibly important to protected species.
On March 15, 1995, the CDF accepted the Lumber Companies' resubmitted notice. The CDF's acceptance reiterated and clarified the conditions that the Lumber Companies consult with and inform the California Department of Fish and Game (CDFG) and the USFWS before commencing timber operations. Two days later, the CDF again wrote to the Lumber Companies requiring an on-site inspection "whereby the agencies must approve the cutting of any standing trees." On March 24, 1995, the Lumber Four days later, a resources manager of one of the Lumber Companies met with representatives of the USFWS and the state CDFG. Following this meeting, the USFWS and the CDFG sent a joint letter to the Lumber Companies dated April 12, 1995. This letter reviewed the meeting and the on-site inspections and laid down several specific conditions that had to be met to comply with Cal.Code Regs. tit. 14, § 1038(b)(7) and with other state rules, and to avoid a 'take' of identified species under the federal ESA.
Companies wrote to the CDF disputing several conditions imposed by the CDF.
On May 3, the Lumber Companies responded to the April 12 letter seeking clarification of conditions. Finding the conditions too restrictive, the Lumber Companies stated they were considering filing an action against the United States and California for inverse condemnation.
The USFWS and the state CDF provided the requested clarification by letter dated July 18, 1995. On September 1, 1995, the Lumber Companies notified the CDF, CDFG, and USFWS that they would fully comply with all conditions laid out in the past communications. They stated they intended to commence cutting and removing dead, dying and diseased trees in the Headwaters Forest sometime shortly after September 15, 1995. On September 15, 1995, EPIC filed its complaint.
In the complaint, EPIC alleged that the USFWS had exercised discretionary federal control over the Lumber Companies' timber operations, thereby triggering the USFWS's duty under section 7 of the ESA to prepare a biological assessment and a biological opinion. EPIC also alleged that the USFWS had engaged in "major federal action" within the meaning of NEPA, requiring the preparation of an environmental impact statement. EPIC sought to enjoin the Lumber Companies from salvaging the trees and to enjoin the Secretary of the Interior and the USFWS from approving any cutting or removal pursuant to the exemption notices without first preparing a biological assessment and opinion, and an Environmental Impact Statement (EIS). On September 29, 1995, the district court entered a preliminary injunction against the Lumber Companies, but not against the federal defendants. This appeal followed. 2
The core issue is whether evidence was presented to the district court which indicated discretionary federal involvement or control over the Lumber Companies' intended tree salvage...
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