ELR Citation: ELR 20706
No(s). 94-35070 (9th Cir. Mar 24, 1995)

The court holds that an environmental group established an actionable "taking" under Endangered Species Act (ESA) §9(a)(1)(B) by showing that a logging company's timber harvesting plans posed an imminent threat of harm to a pair of northern spotted owls, a threatened species under the ESA. The owls' nesting site is adjacent to the 40-acre area that the logging company intends to clearcut. The court first holds that the ESA's language, purpose, and structure authorize citizens to seek an injunction against an imminent threat of harm to a protected species. The court notes that the ESA's language, legislative history, and applicable case law support its holding that a showing of future injury to an endangered or threatened species is actionable under the Act. The court next finds it conceivable that one can inflict great harm on a protected species by creating an imminent threat of harm to that species, and that such a threat falls within the broad scope of Congress' definition of "take" in ESA §9. The court further holds that the U.S. Department of the Interior's (DOI's) use of the term "actually" in the regulation defining "harm," 50 C.F.R. §17.3, was not intended to foreclose claims of an imminent threat of injury to wildlife. DOI inserted the phrase "actually kills or injures wildlife" in the definition to preclude claims that only involve habitat modification without any death or injury to protected wildlife. Nowhere does this definition of harm or its explanatory commentary require past injury to protected wildlife. The definition's "actual injury" requirement would be satisfied as long as some injury to protected wildlife is shown, either in the past, present, or future.

The court holds that Congress' overriding purpose in enacting the ESA was to allow citizen suits to enjoin an imminent threat of harm to protected wildlife. The district court's conclusion that the ESA forecloses citizen-suit claims of an imminent threat of harm to protected wildlife is contrary to the letter and spirit of the statute's purpose to conserve endangered species. The court further holds that the ESA's overall structure indicates that Congress intended to make claims of an imminent threat of injury to a wildlife actionable under the ESA. Examining the legislative history of ESA §11(e)(6), which shows the unmistakable intent of Congress to authorize the U.S. Attorney General to enjoin such threats, dispels any doubt as to Congress' intent to authorize suits to enjoin the imminent threat of injury to wildlife. And because Congress modeled the provision authorizing the U.S. Attorney General to seek injunctions after the citizen suit provision, the court infers that Congress implicitly intended to authorize private plaintiffs to enjoin a potential violator before harm to the species occurs. The court also holds that ESA §11(g)(2)(C)'s exception from the 60-day notice requirement for actions that pose a significant risk to the well-being of any protected species clearly demonstrates Congress' intent to stop imminent threats of injury to protected wildlife. Nowhere does Congress indicate that a plaintiff's standing to enjoin such grave threats is contingent on a showing of past injury.

The court holds that the environmental group has presented sufficient evidence to show that the logging company's harvest activities are reasonably certain to harm the owls and that such harm is imminent. The court concludes, therefore, that the environmental group has set forth specific facts showing that there is a genuine issue for trial, as Fed. R. Civ. P. 56(e) requires. The court further concludes that viewing the evidence in the light most favorable to the environmental group, the nonmoving party, the evidence, if proved, would demonstrate a reasonable certainty of harm. The court also holds that the environmental group has established the imminence of the harm, because the company has applied for a permit to clearcut the forest, has finished building an access road to the site, and it is undisputed that the company plans to clearcut the timber as soon as possible. Because disputed facts remain on whether the harvest is reasonably certain to impair the owls' essential behavior patterns, however, the court remands the case to the district court for an appropriate finding on this issue. Finally, the court holds that it need not decide whether the ESA proscribes habitat modifications that merely retard species recovery, because the environmental group has proffered sufficient evidence to show that the logging company's habitat modification would actually injure the owl pair.

Counsel for the Plaintiff
Gary K. Kahn
Reeves & Kahn
610 SW Alder St., Rm. 910, Portland OR 97205
(503) 227-5144

Counsel for the Defendant
Steven P. Quarles
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Before Pregerson, Trott, and Fitzgerald,^*JJ.: