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Wildlands v. Scott Timber Co.

United States District Court, D. Oregon, Eugene Division

July 5, 2018

CASCADIA WILDLANDS, THE CENTER FOR BIOLOGICAL DIVERSITY, and AUDUBON SOCIETY OF PORTLAND, Plaintiffs,
v.
SCOTT TIMBER CO., ROSEBURG RESOURCES CO., and RLC INDUSTRIES CO., Defendants.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE.

         In this Endangered Species Act ("ESA") citizen suit, plaintiff environmental organizations seek to permanently enjoin defendant logging companies from logging a forty-nine-acre section of the Elliott State Forest known as the Benson Snake Parcel. Plaintiffs allege that the Benson Snake Parcel is occupied habitat of marbled murrelets, sea birds that are listed as threatened species under the ESA. Plaintiffs further contend that logging the Benson Snake Parcel will result in "take" of the marbled murrelet, in violation of Section 9 of the ESA, Defendants moved to dismiss the lawsuit for lack of jurisdiction, on the ground that plaintiffs failed to provide statutorily adequate pre-suit notice.

         BACKGROUND

         This case concerns the effect of logging on marbled murrelets, "small sea bird[s]" that "spend most of their time at sea feeding on fish, but nest and engage in courtship behaviors and breeding inland in contiguous mature and old-growth forests." First Am. Compl. ¶ 39. Since 1992, marbled murrelets in Washington, Oregon, and California have been listed as "threatened" under the ESA. Id. ¶ 49. Plaintiffs-Cascadia Wildlands, the Center for Biological Diversity, and Audubon Society of Portland-allege that "[t]he primary reason marbled murrelets are listed as a threatened species is the loss of older coastal forests that provide marbled murrelet nesting and breeding habitat." Id. f 50. They further allege that "[t]he primary cause of forest loss and resulting marbled murrelet population declines is commercial timber harvest and related wind throw or blow down of trees, fire, and other natural events." Id.

         On May 31, 2012, plaintiffs sued Governor John Kitzhaber and other state defendants under the ESA, seeking "to enjoin State-authorized logging activities and forest management decisions that are causing the 'take' of threatened marbled murrelets ... in violation of Section 9 of the Act." Complaint for Declaratory & Injunctive Relief at 1, Cascadia Wildlands v. Kitzhaber, No. 3:12-cv-00961-AA (D. Or. May 31, 2012) (dismissed Feb. 18, 2014). I presided over that case, in which several logging companies, including defendant Scott Timber Company ("Scott Timber"), obtained defendant-intervenor status. In November 2012, 1 granted plaintiffs' motion for a preliminary injunction, enjoining eleven specific timber sales and other logging activities on certain state-owned lands in the Tiilamook, Clatsop, and Elliot State Forests. Cascadia Wildlands v. Kitzhaber, 2012 WL 5914255, *2 (D. Or. Nov. 19, 2012). After the injunction was entered, the state defendants cancelled all pending and proposed logging operations in occupied murrelet sites in those forests. In February 2014, the case settled and I granted the parties' joint stipulated motion to dismiss.

         In January 2014, just before I dismissed the Kitzhaber case, the State of Oregon announced a plan to auction off several tracts of the land at issue in the Kitzhaber lawsuit, including a 355-acre tract of the Elliot State Forest called the Benson Ridge Parcel. The appraisal for the Benson Ridge Parcel noted that the property "ha[d] not been surveyed for murrelets" and took into account the likelihood that some or all of the property was occupied by marbled murrelets. Cady Decl. Ex. 5 at 10, 17 (doc 2-11 at 115, 122).

         On March 13, plaintiffs sent a letter to Scott Timber and eighteen other logging companies. That letter was addressed to companies that had "offered or may offer a bid for the purchase of lands in the Elliott State Forest in Coos County, Oregon, including the Adams Ridge Parcels, the Benson Ridge Parcel, and/or the East Hakki Ridge Parcel." Id. at 2. The letter went on to state:

You are hereby provided notice, pursuant to 16 U.S.C. § 1540(g), that logging in occupied or suitable nesting habitat for marbled murrelets in any of these parcels violates the Endangered Species Act ("ESA") and its implementing regulations, by killing, injuring, harming, harassing, and otherwise causing 'take' of threatened marbled murrelets.
As you may be aware, on November 19, 2012, the Federal District Court for the District of Oregon issued an injunction against logging in occupied marbled murrelet habitat on the Elliott State Forest, including in any occupied sites on the parcels that are now for sale. As a result of that litigation, ... the State of Oregon canceled all of its pending and future logging activities in occupied marbled murrelet habitat on the Elliott State Forest. The State of Oregon is selling these lands as a direct result of the litigation and because of the liability and encumbrances associated with the presence of marbled murrelets and other threatened and endangered species. Liability under the Endangered Species Act would apply just as forcefully to any future owner of this land, whether that owner is a state, an individual, a corporation, or any other entity.
If you purchase any or all of these parcels, we intend to commence litigation to obtain an injunction the very same injunction already obtained against the current owner-to prevent you from logging in suitable or occupied marbled murrelet habitat or engaging in any other practices that result in harm to or take of threatened or endangered species.

Id. The letter then provided two pages of background on the ESA (with citations to Ninth Circuit and District of Oregon decisions concerning marbled murrelets) and a page of information about marbled murrelets. In a section titled "NOTICE OF VIOLATION," the letter asserted:

The Elliott State Forest is one of the few places where marbled murrelets are reliably present, and surveys have consistently shown that suitable habitat in the area is occupied by murrelets close to one hundred percent of the time. For example, the State of Oregon planned sixteen timber sales on the Elliott State Forest in 2013. After surveying for marbled murrelets, fifteen of those sales-all but one-were canceled because of marbled murrelet occupancy. Likewise, murrelet surveys have only been conducted so far in two of the five parcels being considered for sale, and significant murrelet occupancy was detected in both of those surveyed parcels. There is a significant amount of suitable marbled murrelet habitat in the three other parcels, including ... 219 acres in the Benson Ridge Parcel .... Based on the suitability of habitat in these parcels, and based on the occupancy of murrelets in almost all nearby suitable habitat, there is ample evidence that marbled murrelets occupy and will continue to occupy the offered parcels[.]

Id. at 5-6.

         The state's auction closed April 11, 2014. Scott Timber was the winning bidder for the Benson Ridge Parcel. On June 3, 2014, after learning the identities of the winning bidders, plaintiffs sent another letter ("the 2014 Notice") to Scott Timber and Seneca Sawhill Company. The 2014 Notice repeats much of the content of the March 13 letter and adds new content, including the following statement at the end of the "NOTICE OF VIOLATION" section:

Your companies-Scott Timber and Seneca-are both logging companies. The land you own is for the purpose of creating timber and generating revenue. Kathy Jones, one of the co-owners of Seneca, has publicly stated that Seneca will clearcut the East Hakki Ridge Parcel. Therefore, your acquisition of the three parcels makes the logging of these murrelet occupied areas reasonably certain to occur.

Folk Decl. Ex, 108 at 5-6, Sept. 23, 2016 (doc. 18-2 at 19-20) (footnote omitted). Copies of both the March letter and the 2014 Notice were sent to the Secretary of the Interior and to the State Director of the Fish and Wildlife Service's Oregon office.

         On June 4, 2014, the State of Oregon signed a bargain and sale deed conveying the Benson Ridge Parcel to Scott Timber. On June 9, 2014, Scott Timber responded to the 2014 Notice. In its response, Scott Timber stated that:

Scott Timber Co. presently has no concrete plans, much less imminent plans, to conduct timber harvest operations on the Benson Ridge or Adams Ridge #1 parcels. Any future decisions relative to timber harvest operations on these parcels will be made after undertaking significant surveying and planning work, including investigation and planning related to species listed under the Endangered Species Act. Once the investigation and planning work is complete-which could take as long as two to three years-Scott Timber Co. will assess all the information available to it and make appropriate decisions relative to timber management objectives for the future....
As a result of these circumstances, after consulting with counsel, Scott Timber Co.'s position is that your 60-day notice does not present a ripe controversy for which a ...

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