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Environmental Protection Info. Ctr. v. Simpson Timber Co.

ELR Citation: 31 ELR 20778
Nos. No. 99-15896, 255 F.3d 1073/(9th Cir., 07/09/2001)

The court affirms a district court dismissal of an environmental group's suit against the U.S. Fish and Wildlife Service (FWS) for failing to reinitiate consultation regarding an incidental take permit issued to a timber company under the Endangered Species Act (ESA). The incidental take permit allowed the company to take a limited number of northern spotted owls over a 30-year period. After the FWS issued the incidental take permit, the coho salmon and the marbled murrelet were added to the threatened species list. The group argued that such listing triggered the FWS' duty under ESA §7 to reinitiate consultation to determine if the company's timber harvesting under the incidental take permit would impact the salmon or murrelet.

The court first holds that the environmental group has standing under the ESA and the Administrative Act. Nevertheless, the court then holds that the permit does not require reinitiation of consultation. The FWS did not retain sufficient discretionary control over the company's incidental take permit to implement measures that inure to the benefit of the murrelet or the salmon. Nowhere in the permit and its documents did the FWS retain discretionary control to make new requirements to protect species that subsequently might be listed as endangered or threatened. Further, a provision in the FWS' biological opinion letter for the owl permit requiring reinitiation of consultation is not a statement of continuing discretionary power retained by the FWS over the permit. It simply restated the regulatory requirement of 50 C.F.R. §402.16, which only becomes applicable when sufficient discretionary control has been retained by the agency. Likewise, provisions in the permit's habitat conservation plan and implementation agreement that allow revision of the permit do not apply because none of the provisions address the scope of the FWS' authority to implement measures to benefit species other than the spotted owl.

Counsel for Plaintiff
Neil Levine
Earthlaw
Foote Hall
7150 Montview Blvd., Denver CO 80220
(303) 871-6996

Counsel for Defendants
Alson R. Kemp
Pillsbury, Madison & Sutro
50 Fremont St., San Francisco CA 94105
(415) 983-1000

Thompson, J. Before Nelson dissenting and Trott, JJ.