Jump to Navigation
Jump to Content

Marbled Murrelet v. Pacific Lumber Co.

ELR Citation: 26 ELR 20992
Nos. 95-16945, 83 F.3d 1068/42 ERC 1667/(9th Cir., 05/07/1996)

The court reverses a district court order that preliminarily enjoined lumber companies from engaging in timber salvage operations on portions of their land in California. The U.S. Fish and Wildlife Service (FWS) consulted with the companies and provided them with information as to what they would have to do to avoid a "take" of endangered species under the Endangered Species Act (ESA). The district court granted the preliminary injunction on the basis that there was a serious question whether these consultations were agency actions that should have triggered certain requirements under the ESA and the National Environmental Policy Act (NEPA). The court first holds that the environmental group plaintiff-appellee's notice-of-intent-to-sue letter met ESA §11(g)'s notice requirements. The group's letter gave notice of an intent to raise ESA §7 claims, even though it mostly referenced §9 of the Act and referenced §7 in only one part of the letter. The court next holds that FWS' consultations with the companies did not amount to "agency action" that would trigger ESA §7's requirements. There was no discretionary federal involvement or control over the companies' proposed salvage operations. Moreover, protection of endangered species would not be enhanced by a rule that would require a federal agency to perform the burdensome procedural tasks that §7 mandates simply because it advised or consulted with a private party. Such a rule would be a disincentive for the agency to give such advice or consultation. The court also holds that FWS' activities did not constitute "major federal action" under NEPA that would trigger the Act's environmental assessment or environmental impact statement requirements. The standards for "major federal action" under NEPA and "agency action" under the ESA are similar, and if there is any difference, case law indicates that "major federal action" is the more exclusive standard. The court concludes, therefore, that there is no legal basis for the district court order.

Counsel for Plaintiffs
Thomas N. Lippe
Law Offices of Thomas N. Lippe
90 New Montgomery St., Ste. 1400, San Francisco CA 94105
(415) 495-2800

Counsel for Defendants
Jared G. Carter
Rawles, Hinkle, Carter, Behnke & Oglesby
169 Mason St., Ste. 300, Ukiah CA 95482
(707) 462-6694

James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Thompson, Tashima, and Wilson,* JJ.