ELR Citation: ELR 21301
No(s). C-93-1400-LCB (N.D. Cal. Feb 27, 1995)

The court permanently enjoins a lumber company from implementing a plan to harvest timber on its land in the Owl Creek forest in Humboldt County, California. The court finds that the land is occupied by the marbled murrelet, a species listed as threatened under the Endangered Species Act (ESA). Plaintiff environmental group established that the land is suitable habitat for the marbled murrelet and that the lumber company's survey records demonstrate numerous instances of "occupied behavior" in and around the land. Although the lumber company argued that the quantity of its detections of marbled murrelets was too low to conclude that the marbled murrelet occupies the land, sufficient evidence exists for the court to find that the company administered its surveys with the intent either to avoid detecting marbled murrelets or to understate grossly their presence. The weakness of the company's "no detection" argument is further demonstrated by the fact that it never fully complied with the California Board of Forestry's requirement that it share information from its surveys with the California Department of Fish and Game to ensure that a "take" of the marbled murrelet will not occur during harvesting. The court finds the opinions of two of the company's expert witnesses concerning occupancy insufficiently persuasive because the company's reworking and withholding of original survey data sheets materially weakens the "no detection" premise on which they relied. Also, the experts lack objectivity and credibility because their primary experience with marbled murrelets grew out of their involvement with the company, for which they have presumably been paid fair and full compensation; their trial testimony, which contradicted scientific knowledge about the marbled murrelet, appears to have been crafted by the company's attorneys; and they acted as the company's advocates in a variety of forums.

The court holds that the proposed logging will harm the marbled murrelet within the meaning of the ESA, because it will destroy and degrade occupied habitat such that marbled murrelet will be killed or injured by the logging operations or through significant impairment of their essential behavioral patterns. In addition, implementation of the company's timber plan will harass the birds within the meaning of the Act, because it will significantly disrupt their normal behavioral patterns. The court holds that a permanent injunction is warranted, because harvesting the company's land in the Owl Creek forest will likely cause an ESA violation by degrading the marbled murrelet's critical nesting habitat to the extent that it will significantly impair their essential behavioral patterns.

[Briefs in related litigation are published at ELR PEND. LIT. 66360.]

Counsel for Plaintiffs
Macon Cowles
Macon Cowles & Associates
1680 Wilson Ct., Boulder CO 80304
(303) 447-1332

Counsel for Defendant
Alson R. Kemp Jr.
Pillsbury, Madison & Sutro
225 Bush St., San Francisco CA 94104
(415) 983-1000