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Wildlands v. Scott Timber Co.

United States District Court, D. Oregon, Eugene Division

July 27, 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, 16 U.S.C. § 1538(a)(1)(B), Defendants move for summary judgment on the ground that plaintiffs lack standing to sue. For the reasons set forth below, defendants' motion is denied.

         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. ¶ 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 June 4, 2014, defendant Scott Timber Co. ("Scott Timber") purchased a 355-acre tract of land known as the Benson Ridge Parcel from the State of Oregon.[1] The Benson Ridge Parcel was previously part of the Elliott State Forest. On August 13, 2016, defendant Roseburg Resources Company notified the Oregon Department of Forestry of its plan to clear-cut the Benson Snake Parcel, a 49-acre tract of land located in the middle of the Benson Ridge Parcel.[2]

         On August 25, 2016, plaintiffs filed this action, asserting that Benson Snake Harvest Operation would result in "take" of the marbled murrelet, in violation of Section 9 of the ESA. That same day, plaintiffs moved for a preliminary injunction to prevent defendants from moving forward with the Benson Snake Harvest Operation, In their opposition to that motion, Defendants argued-among other things-that this Court lacked jurisdiction because plaintiffs did not have standing to sue.

         Pursuant to stipulation of the parties, plaintiffs' standing at the summary judgment phase[3] will be determined by assessing whether two individual members of Cascadia Wildlands, Max Beeken and Rosemary Francis Eatherington, would have standing to bring this lawsuit.[4] Mr. Beeken is a professional wildlife biologist and the co-director of Coast Range Forest Watch, a Coos Bay-based nonprofit. Coast Range Forest Watch is a volunteer-run organization that performs citizen science surveys for the marbled murrelet in Oregon's coast range. In a declaration submitted in support of plaintiffs' motion for a preliminary injunction, Mr. Beeken stated

I have personally been to the Benson Ridge [P]arcel, first in 2013 to enjoy the forests and wildlife there, and then again several times in 2014 to conduct murrelet surveys. Since the parcel was sold to a private timber company in 2014, I have been back to the Benson [R]idge [P]arcel, using the public road that goes through the parcel, and enjoying the forests there from the road and from adjacent public lands. I have plans to return to this area, both this year and next. My ability to use and enjoy the area for recreational aesthetic, person[al], professional, and scientific pursuits[] will be negatively impacted by the logging that is now proposed in occupied marbled murrelet habitat.

Beeken Decl. ¶ 24, Aug. 25, 2016.

         Ms. Eatherington was the Conservation Director for Cascadia Wildlands from 2010 to 2015. In a declaration submitted in support of plaintiffs' motion for a preliminary injunction, Ms. Eatherington explained that she has visited the Elliott State Forest "on average twice a year" since 2002, often camping for two to three days at a time. Eatherington Decl. ¶ 5, Aug. 25, 2016. She stated

I enjoy camping out and trying to hear or see marbled murrelets before the sun rises. I have taken several trips to the Elliott for the specific purpose of looking for murrelets at dawn, I camp under the stars and wake a little before dawn scanning the sky for murrelets. Generally, I always keep an eye out for murrelets when visiting the Elliott and have spent considerable time bird watching for other species of bird in the Elliott as well.

Id. ¶ 6, Regarding the Benson Ridge Parcel specifically, Ms. Eatherington reported that she visited that area "when it was still part of the Elliott State Forest" and

continued to visit the area since the parcel with sold to Roseburg Forest Products. This area contains stunning old-growth with trees so large that Oregon no longer has a mill that can process them. I have viewed and enjoyed the forests in the parcel from the 4000 road that passes through the parcel, and from adjacent public lands. My most recent trip to Benson Ridge was on June 18, 2016. I stopped along the 4000 road and took several pictures of that visit, which are attached hereto as [E]xhibit 1... .
I have definite plans to continue to use and enjoy the forests in and around the Benson Ridge parcel. Based on my many years of first-hand experience seeing the effects of logging, I am concerned that logging in the Benson parcel will have a negative effect on marbled murrelets in the area. Logging cuts up the forest and eliminates continuous forest stands in the surrounding Elliott State Forest, which are one of that forest's greater qualities. Without these continuous forest areas, I am concerned that my ability to hear or attempt to see murrelets in Benson Ridge parcel and the surrounding Elliott State Forest will be greatly reduced, which will diminish my enjoyment of the forest.

Id. ¶¶ 7-8.

         I granted plaintiffs' motion and entered a preliminary injunction on December 19, 2016. In the opinion and order on the preliminary injunction, I addressed standing at length. I concluded that plaintiffs had demonstrated adequate "injury in fact," relying in particular on statements regarding future plans to visit the Benson Ridge Parcel. Cascadia Wildlands v. Scott Timber Co., 190 F.Supp.3d 1024, 1031-32 (D. Or. 2016). I also found that plaintiffs had adequately alleged causation and redressability, as necessary to establish Article III standing to sue. Id. at 1032. On appeal, the Ninth Circuit reversed on other grounds but concluded that "Cascadia has standing to pursue this case. Cascadia's alleged injury-diminished ability to view the marbled murrelets is cognizable as a recreational and aesthetic injury. And Cascadia's injuries are imminent, given members' concrete plans to visit the area to view marbled murrelets in the near future." Cascadia Wildlands v. Scott Timber Co., 715 Fed.Appx. 621, 623 (9th Cir. 2017) (unpublished) (citations omitted).

         On remand, the parties agreed to forego further hearing on the preliminary injunction and instead expedite trial on the merits. Trial is set to begin on August 6, 2018.

         On April 20, 2018, defendants took Mr. Beeken's deposition. In that deposition, Mr. Beeken testified that he drives on the "4000 road .. . several times a year to go into the Elliott for recreational purposes or to do surveys[.]" Kruse Decl. Ex 2 at 4, June 22, 2018. The "4000 road" is "a major road in and out of the Elliott" State Forest which runs through the Benson Ridge Parcel. Id.; Defs.' Mot. Summ. J. 17 n.4. Mr. Beeken stated that although he has been unable to leave the 4000 road to hike into the Benson Ridge Parcel since Scott Timber purchased the property, he has "walked down the road a few times since then" and enjoyed viewing the adjacent land. Kruse Decl. Ex. 2 at 4, June 22, 2018. The following exchange then took place:

Defense Counsel: Since 2014 have you observed any marbeled murrelets on the Benson Ridge parcel?
Mr. Beeken: No.
Defense Counsel: Have you attempted to observe any marbled murrelets?
Mr. Beeken: No. | Defense Counsel: Do you have any future plans to try to observe marbled murrelets on the Benson Ridge parcel?
Mr. Beeken: I have plans to go into this north section that's north of the parcel and do some scouting for potential survey stations in there and possibly do some surveying up there this summer.
Defense Counsel: Okay. Other than that plan, do you have any other future plans to try to observe marbled murrelets?
Mr. Beeken: Within the parcel?
Defense Counsel: Within the Benson Ridge tract.
Mr. Beeken: No, not specific plans.

Carollo Decl. Ex. 135 at 4, June 11, 2018. Later in his deposition, Mr. Beeken stated that he planned to go hiking "along the north and eastern edge of the Benson Ridge" Parcel, likely in "mid to late May." Kruse Decl. Ex. 2 at 12, June 22, 2018. In a declaration submitted in conjunction with plaintiffs' brief opposing summary judgment, Mr. Beeken reported that he in fact visited the Benson Ridge Parcel on May 29, 2018. He drove along the 4000 road, "enjoyed the mature forests there during [his] drive[, ]" and scouted for areas to conduct murrelet surveys during summer 2018. Beeken Decl. ¶ 2, June 21, 2018.

         At Mr. Beeken's deposition, defense counsel also asked "[d]o you think the harvest will affect your ability to observe or see murrelets on public forests?" Carollo Decl, Ex. 135 at 5, June 11, 2018. Mr. Beeken responded "[n]o." Id. Later in the deposition, following a break, defense counsel returned to that question:

Defense Counsel: And again, you don't think it would affect your ability to observe or see murrelets in that area based on the harvest. Correct?
Mr. Beeken: Well, it certainly could due to habitat fragmentation. And if that area is opened up, then there could be more predators in the area, corvids and jays-or corvids, including jays and crows and things like that, which could reduce the likelihood of murrelets nesting in this drainage here. So I think it would make it less likely for me to observe murrelets in that area, Defense Counsel: Well, earlier you said no, didn't you?
Mr. Beeken: I thought that was about that habitat.
Defense Counsel: No. I asked you about observing it.
Mr. Beeken: Oh, I apologize, then. I thought I was observing the habitat, in which there would still be murrelet habitat over here, but there'd be a less likelihood of finding murrelets there if ...

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