Salmon v. Pacific Lumber Co., No. C-98-0283 MHP.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtPatel
PartiesCoho SALMON (Onchorynchus kisutch), Environmental Protection Information Center, Inc., Sierra Club, Inc., Northcoast Environmental Center, Inc., Plaintiffs, v. PACIFIC LUMBER COMPANY, a Delaware corporation, Scotia Pacific Holding Company, a Delaware corporation, Salmon Creek Corporation, a Delaware corporation, Defendants.
Docket NumberNo. C-98-0283 MHP.
Decision Date09 December 1998
30 F.Supp.2d 1231
Coho SALMON (Onchorynchus kisutch), Environmental Protection Information Center, Inc., Sierra Club, Inc., Northcoast Environmental Center, Inc., Plaintiffs,
v.
PACIFIC LUMBER COMPANY, a Delaware corporation, Scotia Pacific Holding Company, a Delaware corporation, Salmon Creek Corporation, a Delaware corporation, Defendants.
No. C-98-0283 MHP.
United States District Court, N.D. California.
December 9, 1998.

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Edgar B. Washburn, Washburn Briscoe & McCarthy, SanFrancisco, CA.

Frank Shaw Bacik, Rawles Hinkle Carter Benke & Oglesby, Ukiah, CA.

Susan R. O'Neill, Macon Cowles & Associates, P.C., Boulder, CO.

Jack R. Tuholske, Missoula, MT.

William A. Rossbach, Rosbach & Whiston, Missoula, MT.

Brendan Cummings, Berkeley, CA.

Mark Harris, Arcata, CA.

OPINION

PATEL, Chief Judge.


The Environmental Protection Information Center, Inc. ("EPIC"), Sierra Club ("Club"), and Northcoast Environmental Center ("Northcoast") (collectively, "organizations") together with the coho salmon, a threatened species under federal law, bring this action against Pacific Lumber Company and its subsidiaries (collectively, "PALCO") to permanently enjoin PALCO from causing a "take" of coho salmon through its timber harvesting operations in various watersheds in Humboldt County, California, in violation of section 9 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1538.

Now before the court is PALCO's motion for summary judgment on whether each of the plaintiffs has standing to bring this action pursuant to the ESA and its motion to dismiss under the doctrine of primary jurisdiction. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND1

Plaintiffs are non-profit organizations which serve their members by seeking to protect and conserve the remaining wild coho salmon and their habitat in northern California, including those which "may exist" in the watersheds of Elk River and the Freshwater, Lawrence, Yager, Bear and Jordan creeks. Plaintiffs' members have a variety of interests with respect to the coho salmon. They include (1) both commercial and sport fishermen who have fished for coho salmon in the Pacific Ocean off the shores of Humboldt County and in the streams and rivers at issue in this action, (2) persons who conduct scientific research and educational studies of coho salmon and coho salmon biology and who wish to continue to do so, and (3) individuals who frequently enjoy observing coho salmon in various stages of their life cycle in all the streams and rivers at issue in this action. Jt. Stmt. Undisp. Facts, at ¶¶ P2-P5. Finally, the three plaintiff organizations

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regularly engage in legislative, educational, judicial and administrative processes to provide further protection for the coho salmon in northern California.

The coho salmon is one of many anadramous salmonid species which spawn in and otherwise occupy the rivers and streams of the northern California coast. On May 6, 1997, the National Marine Fisheries Service ("NMFS"), on behalf of the Secretary of Commerce, listed as threatened the Southern Oregon/Northern California Coast "Evolutionarily Significant Unit" of coho salmon. See 62 Fed.Reg. 24588 (May 6, 1997). The coho salmon population in the southern Oregon/northern California region has declined from an estimated 150,000 to 400,000 naturally spawning fish in the 1940s to less than 10,000 naturally producing adults today. Id. at 24588. The dramatic reduction in the coho salmon population has been due to many natural and man-made conditions, including long-term trends in atmospheric conditions, such as El Niño, which cause extremes in annual rainfall on the northern California coast, the predation of coho salmon by California sea lions and Pacific harbor seals, and commercial timber harvesting. See Jt. Stmt. Undisp. Facts, at ¶¶ 50-56; see also 62 Fed.Reg. at 24588.

This litigation, as many others like it, revolves around PALCO's timber harvesting operations in Humboldt County. PALCO conducts timber harvesting operations in the watersheds of the Elk River and the Bear, Freshwater, Jordan and Yager creeks pursuant to various "timber harvest plans" ("THPs") issued by the California Department of Forestry and Fire Prevention ("CDF"). According to plaintiff, approximately 4000 acres of forest are now logged in these watersheds pursuant to 53 approved THPs, while sixteen THPs consisting of another 2000 acres are pending approval by the CDF. See Compl., at ¶¶ 51-52 & Attachment 3. PALCO's commercial logging operations have caused the introduction of sediment and silt into the rivers and creeks at issue in this litigation and are a recognized cause for coho salmon habitat degradation and for the reduction in coho salmon reproduction. Jt. Stmt. Undisp. Facts, at ¶ P16. Plaintiffs now allege that PALCO's past and present harvesting operations, including logging, hauling, and the construction and maintenance of roads and bridges, have resulted in significant habitat modification and degradation from erosion which has caused and continues to cause an unlawful "take" of coho salmon in violation of section 9 of the ESA. Compl., at ¶¶ 55-69.

In response, PALCO maintains that modifications to its logging operations pursuant to various agreements with the federal and state governments has reduced the impact of timber harvesting on coho salmon and their habitat. On September 28, 1996, PALCO and its parent company, MAXXAM, Inc., entered into an agreement ("Headwaters Agreement") with the state and federal governments to convey certain tracts of land in Humboldt County to the federal and state governments in order to create a forest preserve commonly referred to as the "Headwaters Forest." The Headwaters Agreement contemplates the sale of approximately 5,600 acres of old growth forest owned by PALCO for the creation of a 7,500 acre forest reserve jointly managed by the federal and state governments. As part of the Headwaters Agreement, PALCO agreed to prepare and seek approval of a "sustained yield plan" under California law and a combination multi-species "habitat conservation plan" under federal law (collectively, "HCP"). Along with providing strategies for protecting coho salmon habitat, the HCP contemplates the issuance of an incidental take permit ("ITP") under the ESA and its state law counterpart, which would allow PALCO to legally "take" various species now listed as endangered or threatened, including the coho salmon, the marbled murrelet and the northern spotted owl, as well as species which may be listed in the future. The purpose of the HCP is therefore two-fold: to provide protection for endangered and threatened species and to provide PALCO with some degree of regulatory certainty in conducting future timber harvesting operations on its lands in northern California.

In October 1996, PALCO and state and federal wildlife agencies began negotiations on the content of the various provisions of the HCP required to be submitted under the Headwaters Agreement. On February 27,

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1998, PALCO and the federal and state governments signed a "Pre-Permit Application Agreement in Principle" ("PPAAP") which sets forth the framework for the terms of the HCP, the HCP approval process, as well as for modifications in PALCO's harvesting operations pending approval of the HCP and the issuance of the ITP. On July 12, 1998, PALCO submitted its HCP to both the federal and state agencies for approval and applied for an ITP. Both the approval of the HCP and the issuance of the ITP are now pending.

LEGAL STANDARDS

I. Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial ... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (the nonmoving party may not rely on the pleadings but must present significant probative evidence supporting the claim).

In response to a summary judgment motion on the issue of standing, the plaintiff cannot rest on "mere allegations," but rather, must set forth by affidavit or other competent evidence "specific facts" which for the purposes of the summary judgment motion will be taken to be true. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1352 n. 11 (9th Cir.1994). In contrast, on a motion to dismiss, "general factual allegations of injury resulting from the defendant's conduct may suffice" because general allegations are presumed to "embrace those specific facts that are necessary to support the claim." Id.

II. Endangered Species Act

Congress enacted the ESA 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." Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir.1995); 16 U.S.C. § 1531(a). Section 9 of the ESA makes it unlawful for any person to "take" any threatened or endangered species of fish or wildlife within the United States, unless an ITP or other exemption is obtained pursuant to section 10 of the ESA, 16 U.S.C. § 1539. 16 U.S.C. § 1538. "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...

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5 practice notes
  • Ecological Rights Foundation v. Pacific Lumber Co., No. C-97-0292 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 19, 1999
    ...of a similar citizen-suit provision of the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g). See Coho Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231, 1239-41 (N.D.Cal.1998). In Coho Salmon, the court looked to Supreme Court precedent regarding the nature of associational standing and no......
  • Environmental Prot. Info. Center v. Pacific Lumber, No. C-98-3129 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 15, 1999
    ...the hearings, PALCO asserts that plaintiffs do not have standing to pursue this action. As held in Coho Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231 (N.D.Cal.1998), environmental organizations such as EPIC and Sierra Club have standing to sue under the ESA on behalf of their members if t......
  • Cetacean Community v. Bush, No. CV 02-00599 DAE BMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • March 7, 2003
    ...to sue because a bird is clearly not a "person" as defined in 16 U.S.C. § 1532(13). Id. See also Coho Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231, 1239 n. 2 (N.D.Cal. 1998) (observing that, "[w]ithout delving into the vagaries of the term `entity,' the court notes that, to swim its way ......
  • Sanders v. Apple Inc., Case No. C 08-1713 JF (PVT).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 21, 2009
    ...establishing [the] requirements in order to meet `the irreducible constitutional minimum of standing.'" Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231, 1237 (N.D.Cal. 1998). To establish standing, "Plaintiffs must allege (1) that they have suffered an `injury in fact,' meaning an invasion ......
  • Request a trial to view additional results
5 cases
  • Ecological Rights Foundation v. Pacific Lumber Co., No. C-97-0292 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 19, 1999
    ...of a similar citizen-suit provision of the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g). See Coho Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231, 1239-41 (N.D.Cal.1998). In Coho Salmon, the court looked to Supreme Court precedent regarding the nature of associational standing and no......
  • Environmental Prot. Info. Center v. Pacific Lumber, No. C-98-3129 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 15, 1999
    ...the hearings, PALCO asserts that plaintiffs do not have standing to pursue this action. As held in Coho Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231 (N.D.Cal.1998), environmental organizations such as EPIC and Sierra Club have standing to sue under the ESA on behalf of their members if t......
  • Cetacean Community v. Bush, No. CV 02-00599 DAE BMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • March 7, 2003
    ...to sue because a bird is clearly not a "person" as defined in 16 U.S.C. § 1532(13). Id. See also Coho Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231, 1239 n. 2 (N.D.Cal. 1998) (observing that, "[w]ithout delving into the vagaries of the term `entity,' the court notes that, to swim its way ......
  • Sanders v. Apple Inc., Case No. C 08-1713 JF (PVT).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 21, 2009
    ...establishing [the] requirements in order to meet `the irreducible constitutional minimum of standing.'" Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231, 1237 (N.D.Cal. 1998). To establish standing, "Plaintiffs must allege (1) that they have suffered an `injury in fact,' meaning an invasion ......
  • Request a trial to view additional results

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