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Coho Salmon v. Pacific Lumber Co.

ELR Citation: 29 ELR 20508
Nos. C-98-0283 MHP, 30 F. Supp. 2d 1231/(N.D. Cal., 12/09/1998)

The court holds that environmental organizations have standing to assert an Endangered Species Act (ESA) §9 claim against a lumber company whose timber harvesting operations are allegedly causing the take of coho salmon. The court first holds that the organizations have satisfied each of the elements required for associational standing. The interests that the organizations seek to protect are clearly germane to the purpose of the organizations. Moreover, the injunctive relief sought by the organizations does not require the participation of any of the organizations' individual members. In addition, the organizations have pointed to sufficient facts to create a disputed issue as to whether their members have suffered injury in a personal and individual manner. Further, to the extent that it is undisputed that the company is conducting timber operations and that sedimentation from these operations results in the degradation of coho salmon habitat and concomitant harm to coho salmon, the organizations have created a disputed issue of fact, for the purposes of standing, as to whether the habitat modifications complained of have harmed or threaten imminent future harm to coho salmon. The organizations also established causation and redressibility. The harm suffered by the organizations' members is tied directly to the company's logging activities, and cessation of those activities will end the take of coho salmon.

The court then holds that it will not dismiss the action under the doctrine of primary jurisdiction. Although the court agrees that findings made by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) during the habitat conservation plan process will affect whether an incidental take permit is ultimately issued to the company, the pendency of the company's permit application is not relevant to whether its timber harvesting operations have resulted or will imminently result in the take of coho salmon. Moreover, enforcement of the ESA's prohibition against the take of endangered or threatened species has been placed squarely within the jurisdiction of the courts through the ESA's citizen suit provisions. Further, there is no potential for conflicting decisions between the court and the decisions of the NMFS and the FWS, nor would the court's determination of whether a take has occurred conflict with the Commerce Secretary's decision to issue an incidental take permit.

[Counsel not available at this printing.]