United States District Court, D. Oregon, Eugene Division
CASCADIA WILDLANDS, THE CENTER FOR BIOLOGICAL DIVERSITY, and AUDUBON SOCIETY OF PORTLAND, Plaintiffs,
SCOTT TIMBER CO., ROSEBURG RESOURCES CO., and RLC INDUSTRIES CO., Defendants.
OPINION AND ORDER
Aiken United States District Judge.
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.
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.
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. 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
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.
to stipulation of the parties, plaintiffs' standing at
the summary judgment phase 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. 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.
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
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.
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).
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.
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
Mr. Beeken: No. | Defense Counsel: Do you have any future
plans to try to observe marbled murrelets on the Benson Ridge
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.
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 ...