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Marbled Murrelet v. Babbitt

ELR Citation: 27 ELR 21141
Nos. 96-15617, 111 F.3d 1447/(9th Cir., 04/18/1997) rev'g & vacating

The court vacates a preliminary injunction against private logging in Humboldt County, California, pursuant to eight state-approved timber harvest plans. The U.S. Fish and Wildlife Service (FWS) consulted with the state regarding the plans and issued two letters indicating its opinion that the logging would not take northern spotted owls. The district court granted a preliminary injunction on the basis that there was a serious question whether FWS' issuance of these letters was an agency action that should have triggered certain requirements under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). The court holds that plaintiff environmental groups failed to raise a serious question on the merits regarding whether there was "agency action" as defined in §7(a)(2) of the ESA. When a federal agency lacks the discretion to influence private action, there is no "agency action." In this case, the state, not FWS, has the discretion to influence the private action at issue. And while the state may choose to credit FWS' opinion on the question whether proposed timber operations will likely result in a take of protected species, it may not, in so doing, force "agency action" onto the federal government. Consequently, there is also no serious question whether FWS engaged in "major federal action" under NEPA.

[Opinions in related litigation are published at 25 ELR 21301, 26 ELR 20990, 20992, and 20995. Briefs in related litigation are digested at ELR BRIEFS & PLEADS. 66360.]

Counsel for Plaintiffs
Thomas N. Lippe
Law Offices of Thomas N. Lippe
One Market Plaza
Steuart Tower, 16th Fl., San Francisco CA 94105
(415) 777-5600

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

Before: NORRIS, KOZINSKI, and TASHIMA, Circuit Judges