Marbled Murrelet v. Babbitt

83 F.3d 1060 (1996)

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Marbled Murrelet v. Babbitt

United States Court of Appeals for the Ninth Circuit
83 F.3d 1060 (1996)

Facts

Marbled murrelets (plaintiffs) were birds listed as a threatened species under the Endangered Species Act. Adult marbled murrelets bred inconsistently. When they did breed, the female would return to the same old-growth forest and leave a single egg. These eggs were often eaten by predators. Pacific Lumber Company planned to harvest trees from its land that were used by marbled murrelets for breeding. The Environmental Protection Information Center (EPIC) (plaintiff) sought an injunction on behalf of marbled murrelets, arguing that destruction of the old-growth forest constituted harm as defined by the regulation issued by the secretary of the interior (defendant). The regulation, which was upheld by the United States Supreme Court without addressing the issue of injunctions against future harm, defined harm to include habitat destruction that impaired a threatened species’ essential behavioral patterns, including breeding. Pacific Lumber Company disagreed, arguing that an injunction could not be issued until actual harm had occurred. EPIC presented expert testimony showing that the trees Pacific Lumber Company wanted to remove showed evidence of occupied behavior (i.e., evidence of nesting by marbled murrelets) and that removal of the trees would impair the breeding of marbled murrelets. Pacific Lumber Company conducted a survey that appeared to intentionally undercount and diminish the presence of marbled murrelets in the area. The district court agreed with EPIC and issued a permanent injunction enjoining Pacific Lumber Company’s logging operation. Pacific Lumber Company appealed the district court’s decision.

Rule of Law

Issue

Holding and Reasoning (Thompson, J.)

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