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Marbled Murrelet v. Babbitt

ELR Citation: 26 ELR 20995
Nos. 95-16504, 83 F.3d 1060/42 ERC 1661/(9th Cir., 05/07/1996) motion for permanent injunction granted

The court holds that evidence of a threat of future harm to the marbled murrelet, a species protected under the Endangered Species Act (ESA), supports a permanent injunction against logging in an old growth forest. The court first holds that the appellant lumber company waived its right to argue in this appeal that evidence of a threat of future harm, as opposed to evidence of past actual harm, is legally insufficient for the issuance of the district court's injunction. The company did not raise this argument in the district court. The court notes, however, that there has arguably been an intervening change in the law. Therefore, it agrees to review the merits of the company's argument that the U.S. Supreme Court's intervening decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 25 ELR 21194 (1995), compels the conclusion that evidence of a threat of future harm is legally insufficient for the issuance of the district court's injunction. The court holds that Sweet Home does not overrule Ninth Circuit case law that an imminent threat of future harm is sufficient for the issuance of an injunction under the ESA. Nothing in the Supreme Court's Sweet Home decision purports to limit injunctive relief under the ESA to past violations. Nor does Sweet Home require that a death or injury of a protected species actually occur before an injunction will issue.

The court rejects the company's claim that the plaintiff-appellees' evidence fails to meet the standard for reliable scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 23 ELR 20979 (U.S. 1993). The court holds that the company waived its objections to the admissibility of plaintiff-appellees' scientific evidence regarding impaired breeding by failing to request a ruling on its objections in the district court.

The court holds that under Sweet Home, habitat modification that significantly impairs the breeding and sheltering of a protected species amounts to "harm" under the ESA. Therefore, "harm" includes the threat of future harm. Finally, the court holds that there was sufficient evidence to support the district court's findings. The district court did not clearly err in finding marbled murrelets were nesting in the area and that there was a reasonable certainty of imminent harm to them from the company's intended logging operation.

[A prior decision in this litigation is published at 25 ELR 21301.]

Counsel for Plaintiffs
Macon Cowles
Law Offices of Macon Cowles
1035 Orange Pl., Boulder CO 80304
(303) 447-1332

Counsel for Defendants
Walter R. Allan
Pillsbury, Madison & Sutro
225 Bush St., San Francisco CA 94104
(415) 983-1000

Before Thompson, Tashima, and Wilson,* JJ.