Cascadia Wildlands v. Scott Timber Co.

190 F. Supp. 3d 1024, 2016 U.S. Dist. LEXIS 174971, 2016 WL 7339201
CourtDistrict Court, D. Oregon
DecidedDecember 19, 2016
DocketCase No. 6:16-cv-01710-AA
StatusPublished
Cited by1 cases

This text of 190 F. Supp. 3d 1024 (Cascadia Wildlands v. Scott Timber Co.) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cascadia Wildlands v. Scott Timber Co., 190 F. Supp. 3d 1024, 2016 U.S. Dist. LEXIS 174971, 2016 WL 7339201 (D. Or. 2016).

Opinion

OPINION AND ORDER

AIKEN, Judge:

Plaintiff environmental organizations bring this action pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., against defendant logging companies. Plaintiffs seek to temporarily enjoin implementation of defendants’ Benson Snake logging project. Plaintiffs allege the Benson Snake logging project would destroy forty-nine acres of old-growth and mature forest habitat occupied by marbled murrelets, a threatened species under the ESA. Specifically, plaintiffs argue that logging in occupied marbled murrelet habitat constitutes an unauthorized “take” of the marbled murrelet by harming and harassing the species in violation of Section 9 of the ESA. In response, defendants assert plaintiffs did not comply with notice requirements, lack standing, are unlikely to succeed on the merits,' and have not demonstrated irreparable harm will result in the absence of an injunction. They also contend that an injunction is not in the public interest. For the reasons set forth below, plaintiffs’ motion for a preliminary injunction is granted.

[1029]*1029BACKGROUND

In 2013, the Oregon State Land Board offered three tracts of the Elliott State Forest for sale. Defs.’ Resp. 4 (doc. 18). Before defendants bid on the land, plaintiffs sent a letter indicating the tracts were occupied by marbled murrelets, a threatened species' under the ESA, Plaintiffs stated they intended to sue under the ESA if defendants logged the tracts. Folk. Decl. Ex. 106. Defendant Scott Timber Co. then purchased two of the tracts. Defs.’ Resp. 5. Once the sales closed, plaintiffs sent another letter to defendants indicating that if defendants began logging the tracts, plaintiffs would commence a citizen suit under the ESA. Folk Decl. Ex. 108.

In anticipation of plaintiffs’ citizen suit, defendants hired a consulting firm, Western Ecosystems Technology, Inc. (“WEST”), to conduct a study regarding marbled murrelet presence within the tracts purchased by defendants, Defs.’ Resp. 9. Dr. Steven P. Courtney, a PhD scientist with extensive experience researching marbled murrelets and a variety of other sensitive species, led the study team. The WEST study determined defendants could clear cut the Benson Snake area within the Benson Ridge parcel without harming marbled murrelets. That determination rested on the finding that the habitat within the Benson Ridge parcel was not used for nesting by marbled mur-relets in 2015 and 2016. Thompson Decl. ¶¶ 16, 20-21.

In contrast, plaintiffs allege the Benson Snake parcel is occupied by marbled mur-relets. Pis.’ Mot. for Prelim. Inj. 4 (doc. 2). In May 2014, plaintiffs conducted a survey of the area using the Pacific Seabird Group’s “Methods for Surveying Marbled Murrelets in Forests: A Revised Protocol for Land Management and Research,” (“PSG Protocol”). Pis.’ Mot. for Prelim. Inj. 11. That survey yielded observation of a single pair of marbled murrelets flying across the Benson Ridge parcel at 0. 8 canopy height. Ex. 109; McMahon Decl. ¶¶ 9-11. According to the PSG Protocol, a site is occupied by marbled murrelets where the seabirds have been observed exhibiting subcanopy behaviors, which “occur at or below the forest canopy and that strongly indicate that the site has some importance for breeding.” Pis.’ Mot. For Prelim. Inj. 4 (quotation marks omitted). Under the PSG Protocol, if even one occupancy behavior is detected within a block of contiguous habitat, the entire contiguous stand is classified as occupied. Id. at 4.

Relying on the results of their survey, plaintiffs filed this lawsuit alleging defendants will violate Section 9 of the ESA if they harvest timber on the Benson Ridge parcel. Plaintiffs now seek a preliminary injunction to halt the logging of the Benson Snake project until the merits of the case can be decided. Defendants ask this Court to deny plaintiffs’ motion for a preliminary injunction.

ANALYSIS

I. Notice

Defendants first argue this court lacks jurisdiction to issue a preliminary injunction because plaintiffs failed to provide the pre-suit notice required by statute! Defendants assert plaintiffs did not provide valid notice under the ESA because they contacted defendants in 2014, at which time “the Benson Snake project had not been planned, much less initiated.” Defs.’ Resp. 20. Plaintiffs argue that a party may provide anticipatory notice of an ESA violation because the fundamental purpose of Section 9 is to prevent harm to listed species before it occurs, Pis.’ Reply 3 (doc. 21).

The ESA requires plaintiffs to provide written notice of any violations at [1030]*1030least sixty days prior to the commencement of a lawsuit. 16 U.S.C. § 1540(g)(2)(A)(i). Notice is a jurisdictional requirement. Conservation Cong. v. Finley, 774 F.3d 611, 617 (9th Cir. 2014). When providing notice of a citizen suit, the plaintiff “is not required to list every specific aspect or detail of every alleged violation. Nor is the citizen required to describe every ramification of a violation.” Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 306 F.3d 943, 961 (9th Cir, 2002), Instead, the analysis turns on the overall sufficiency of the notice. Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 646, 651 (9th Cir. 2015); see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996) (examining “the letter as a whole” for notice sufficiency). The ‘question is whether the notice provided sufficient information to allow the defendant to detect and address the alleged' violation, bearing in mind the defendant’s greater access to information about its own activities. Klamathr-Siskiyou Wild-lands Ctr., 797 F.3d at 651. “A reviewing court may examine both the notice itself and the behavior of its recipients to determine whether they understood or reasonably should have understood the alleged violations.” Id.

Analyzing the , overall sufficiency of plaintiffs’ letter, notice was valid. Defendants received notice sixty days prior to the commencement of this case. Though the notice arrived before the specific harvest plan for the Benson Snake Unit was developed, defendants, as logging companies, purchased the Benson Ridge for timber harvest. Plaintiffs understood this and gave notice to defendants that they would pursue action against any timber harvests in the parcel because marbled murrelets allegedly breed in the parcel. Since defendants are private logging companies, plaintiffs could not know precisely when the Benson Snake logging project was developed. Because defendants were fairly put on notice of plaintiffs’ intent to sue, it does not matter that they were unable to describe, the logging project in detail in their notice letter. See Ecological Rights Found, v. Pac. Gas & Elec. Co., 713 F.3d 502, 506-07 (9th Cir. .2013) (holding notice was sufficient under the ESA when the letter provided a .non-exhaustive list of example violations).

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Bluebook (online)
190 F. Supp. 3d 1024, 2016 U.S. Dist. LEXIS 174971, 2016 WL 7339201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cascadia-wildlands-v-scott-timber-co-ord-2016.