Marbled Murrelet v. Pacific Lumber Co., C-93-1400-LCB.

• Decision Date: 27 February 1995
• Docket Number: No. C-93-1400-LCB.,C-93-1400-LCB.
• Citation: 880 F. Supp. 1343
• Court: U.S. District Court — Northern District of California
• Parties: MARBLED MURRELET (BRACHYRAMPHUS MARMORATUS), Environmental Protection Information Center, Inc., Plaintiffs, v. PACIFIC LUMBER COMPANY, Defendant.

880 F. Supp. 1343

MARBLED MURRELET (BRACHYRAMPHUS MARMORATUS), Environmental Protection Information Center, Inc., Plaintiffs, v. PACIFIC LUMBER COMPANY, Defendant.

No. C-93-1400-LCB.

United States District Court, N.D. California.

February 27, 1995.

Macon Cowles, Susan R. O'Neill, Boulder, CO, Charles S. Crandall, San Diego, CA, Mark P. Harris, Arcata, CA, William A. Rossbach, Missoula, MT, for plaintiffs.

Alson R. Kemp, Jr., Mark H. Penskar, Andrea L. Gross, San Francisco, CA, Frank Shaw Bacik, Ukiah, CA, for defendant.

MEMORANDUM ORDER INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW

BECHTLE, District Judge.

I. INTRODUCTION

Plaintiffs, Environmental Protection Information Center, Inc. ("EPIC") and the marbled murrelet (Brachyramphus marmoratus), a federally-protected species, have brought suit against defendant Pacific Lumber Company ("Pacific Lumber") to permanently enjoin the implementation of Timber Harvest Plan 1-90-237 HUM ("THP-237"), under which Pacific Lumber proposes to harvest a 137 acre portion of the Owl Creek forest, a 440 acre stand of old-growth coastal coniferous forest ("old-growth") located in Humboldt County, California. EPIC contends that Owl Creek is part of one of only three marbled murrelet nesting habitats remaining in California, and that Pacific Lumber's harvesting of 137 acres of this area will result in a "taking" of the species in violation of § 9(a)(1)(B) of the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1538(a)(1)(B).

On February 2, 1994, U.S. District Judge Fern M. Smith issued a preliminary injunction barring Pacific Lumber from engaging in any logging activities in THP-237 until further order of this court. Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 12 (N.D.Cal. Feb. 2, 1994).¹ The court held an eight day non-jury trial between August 15, 1994 and September 8, 1994 to determine whether the marbled murrelet occupies the proposed timber harvest area of THP-237, and, if so, whether Pacific Lumber's implementation of THP-237 will result in a "take" of the species in violation of the ESA. Based on the evidence of record, and the court's findings of fact and conclusions of law as set forth below, the court finds that the marbled murrelet does, in fact, occupy the proposed timber harvest area, and that Pacific Lumber's implementation of THP-237 will sufficiently "harm" and "harass" the marbled murrelet to constitute a "take" of the species in violation of 16 U.S.C. § 1538(a)(1)(B).² Pacific Lumber is hereby permanently enjoined from implementing THP-237.

II. FINDINGS OF FACT

A. The Parties, Jurisdiction, Venue and Standing

1. EPIC is an "environmental watchdog organization devoted to the protection of threatened and endangered species in the Northern California forest ecosystem." Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 1 (N.D.Cal. Sept. 1, 1993). EPIC's 300 members live and work in the redwood region of Northern California. (Lanham, Tr. 8/15/94 at 42, 46.) Many of EPIC's members are committed to protecting the biodiversity of the redwood region. (Id. at 55.) In this role, they monitor areas where they believe marbled murrelets are nesting, and attempt to determine what impact logging these areas will have on the marbled murrelet and other old-growth dependent species. (Id.) This court has already found that EPIC's members will suffer an "injury in fact" if Pacific Lumber's implementation of THP-237 results in a "take" of the marbled murrelet in violation of the ESA. Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 5-9 (N.D.Cal. Sept. 1, 1993) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 8, 112 S.Ct. 2130, 2143 n. 8, 119 L.Ed.2d 351 (1992)). Thus, EPIC has standing to sue under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A). Id.

2. The marbled murrelet is a rare seabird which nests primarily in old-growth coastal coniferous forests between southeast Alaska and Santa Cruz, California. (Pls.' Ex. 272 at 2.) Effective March 12, 1992, the marbled murrelet was listed as an "endangered species" under the California Endangered Species Act ("CESA"), 14 Cal.Fish & Game Code § 1750, et seq.³See 14 C.C.R. § 670.5. Effective September 28, 1992, the marbled murrelet was listed as a "threatened species" under the federal ESA within its range in California, Oregon and Washington.⁴ 57 Fed.Reg. 45328 (Oct. 1, 1992); see also 50 C.F.R. § 17.11 (1993). Thus, as a protected species under the ESA, the marbled murrelet has standing to sue "in its own right." Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 9, n. 4 (N.D.Cal. Sept. 1, 1993) (quoting Palila, 852 F.2d at 1107.).

3. Pacific Lumber is a logging company with a base of operations in Scotia, California. (Herman, Tr. 9/6/94 at 165.) Pacific Lumber owns and proposes to harvest the portion of the Owl Creek forest covered by THP-237. (Def's. Exs. 816 and 818.)

4. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 16 U.S.C. §§ 1540(c) and 1540(g)(1).

5. Venue is proper pursuant to 28 U.S.C. § 1391(b).

B. The Marbled Murrelet

6. The marbled murrelet is a small seabird in the family of alcids (which includes auks, murres and puffins).⁵ (Carter, Tr. 8/15/94 at 58-60; Pls.' Ex. 251 at 1, 7-8.) The marbled murrelet is approximately nine inches in length, it has a short neck and tail, small wings, and a heavy compact body. (Pls.' Ex. 251 at 1, 7-8; Nelson, Tr. 8/16/94 at 53.) Both adult murrelets and their chicks have "cryptic plumage;" during the breeding season, the adult's plumage is dark brown and gray with black bars above and a heavily mottled light brown below. (Pls.' Ex. 251 at 8; Nelson, Tr. 8/16/94 at 22, 53; Carter, Tr. 8/15/94 at 66.)

7. Like other alcids, the marbled murrelet spends most of its time at sea feeding on small fish. (Pls.' Ex. 251 at 7-8.) The marbled murrelet, however, is the only member of the alcid family that nests in trees. (Id. at 1; Carter, Tr. 8/15/94 at 60.) Within the contiguous United States, the marbled murrelet nests exclusively in old-growth coniferous forests within 30 miles of the northern Pacific coastline.⁶ (Carter, Tr. 8/15/94 at 60-61, 72; Burkett, Tr. 8/18/94 at 185, 224-26; Pls.' Exs. 223, 224, 251, 270, 304 and 329.) These old-growth forests contain centuries-old redwood and Douglas fir trees which are hundreds of feet tall, with large trunks that can range from two feet to ten feet in diameter. (Fox, Tr. 9/7/94 at 229-30; Herman, Tr. 9/6/94 at 112, 120.) Marbled murrelet nest trees generally have a large trunk (more than 32 inches in diameter) and large limb structures that are used as a nest platform. (Nelson, Tr. 8/16/94 at 53.) Typically, the marbled murrelet chooses a limb at least 150 feet above the forest floor. (Id. at 55.)

8. Marbled murrelets do not breed until they are several years old, and adults do not necessarily breed every year. (Pls.' Ex. 251 at 1, 9-10.) Additionally, the marbled murrelet does not "build" a nest; rather, the female lays a single egg each year in a natural depression on a large horizontal, moss-covered limb of an old-growth redwood or Douglas fir tree. (Id.; Nelson, Tr. 8/16/94 at 21-22; Moore, Tr. 8/17/94 at 156.) After an egg is laid, the male and female incubate the egg, trading off duties on a daily basis. One murrelet remains on the nest while the other is at sea, and the birds exchange places at dawn. (Nelson, Tr. 8/16/94 at 23-25.)

9. Marbled murrelets nest solitarily, rather than in colonies. (Id. at 26; Carter, Tr. 8/15/94 at 66; Burkett, Tr. 8/18/94 at 264.) While a forest where marbled murrelets are nesting usually contains more than one such nest, only a single pair of marbled murrelets will nest in any one tree within a particular forest stand. (Nelson, Tr. 8/16/94 at 27, 52.) In addition, marbled murrelets are known to have high "site fidelity;" i.e., the species returns each year to the same forest "stand."⁷ (Id. at 70-71; Carter, Tr. 8/15/94 at 151; Speich, Tr. 9/8/94 at 63-64.)

10. The marbled murrelet is highly susceptible to predation during its nesting season, which lasts from approximately mid-April until September. (Moore, Tr. 8/17/94 at 155; Pls.' Ex. 251 at 9, 12-13.) Of the marbled murrelet nests which have been discovered, few have achieved nesting success. (Carter, Tr. 8/15/94 at 86; Nelson, Tr. 8/16/94 at 26.) That is, the chick hatched in the nest rarely survives to become a fully-fledged bird. Death of marbled murrelet chicks before fledgling results primarily from attacks by avian predators. (Nelson, Tr. 8/16/94 at 26.) Predators such as ravens, hawks and stellar jays, known as "corvids," are generally considered to be a significant threat to the marbled murrelet. (Id. at 26-27; Burkett, Tr. 8/18/94 at 263-64; Moore, Tr. 8/17/94 at 178-79; Speich, Tr. 9/8/94 at 76.) Some experts believe that, even under ideal circumstances, more than 50 percent of marbled murrelet nests are subject to nest predation. (Moore, Tr. 8/17/94 at 180.)

11. Because the marbled murrelet is highly susceptible to predation during the nesting season, the bird has developed very secretive behavior to protect itself and its young. (Carter, Tr. 8/15/94 at 62-63, 65-66.) The marbled murrelet prefers to nest in areas where the foliage is thick enough to protect it from being spotted by avian predators. (Moore, Tr. 8/17/94 at 155.) While on land, the marbled murrelet is nocturnal; it flies primarily in darkness or at very low light levels, at dawn and dusk. (Carter, Tr. 8/15/94 at 66; Nelson, Tr. 8/16/94 at 53.) Additionally, the marbled murrelet flies very fast through the air, at speeds up to sixty miles per hour. (Nelson, Tr. 8/16/94 at 18.)

12. Because the marbled murrelet depends on stealth for its existence, it is "very, very difficult to study and find." (Nelson, Tr. 8/16/94 at 52-53.) In the words of one of Pacific Lumber's expert witnesses, Steven Kerns ("Kerns"): "the murrelet is a bird that is hard to detect at...