Table of Contents Late Fall 2007  •  Volume 3, Number 2

Logging on Private Land and the Endangered Species Act

By Jessica K. Ferrell

When clearing timber or developing their property, private landowners must comply with state forest practices laws and, if protected species or habitat are present, the federal Endangered Species Act (“ESA”).  If a plaintiff can show that there is a reasonable likelihood of future habitat modification that is reasonably certain to injure the protected species by impairing their essential behavioral patterns, for example, he may be able to obtain a preliminary injunction under the ESA to stop logging.  Accordingly, the logging or developer client should be cognizant of multiple state and federal laws and regulations, including the ESA, and understand that even if regulatory bodies acquiesce or approve of the landowner’s plans, development and clearing practices could still be subject to a challenge and injunction.

In the Pacific Northwest, for instance, courts have enjoined public and private land clearing to protect the Northern Spotted Owl (“spotted owl”).  Most recently, a federal district court in Washington issued a preliminary injunction under the ESA barring the Weyerhaeuser Company from logging its own land in Southwest Washington.   Seattle Audubon Society v. Sutherland, No. 06-1608, 2007 WL 2220256 (W.D. Wash. Aug. 1, 2007) appears to be the second ESA case to halt logging on private land on account of the spotted owl. 1 The lawsuit is part of a larger controversy regarding endangered species and forest practice regulation, involving federal and state regulators, the timber industry, private landowners, and conservation groups.  The lessons learned in the Audubon case could apply throughout the country, particularly where development and timber harvesting occur within a protected species’ habitat. 

Background

The Spotted Owl

The spotted owl’s range extends from southern British Columbia to northern California.  The U.S. Fish and Wildlife Service (“USFWS”) listed the species as threatened under the ESA in 1990, and designated its critical habitat two years later.  Spotted owls require old growth forests to survive.  In 2004, the USFWS completed a five‑year status review and found that the species continues to decline, so recommended that it remain listed as threatened.  Although Southwest Washington covers about 40% of the owl’s historic Washington range, remaining habitat is limited and fragmented, and only a few pairs and single spotted owls remain in the area. 

State and federal governments jointly regulate spotted owl habitat and recovery.  Washington’s Department of Natural Resources (“WDNR”) administers a Habitat Conservation Plan (“HCP”) to protect spotted owls on WDNR‑managed forested lands within the owl’s range.  The HCP, a long-term management plan authorized under the ESA, covers about 1.6 million acres of state trust land in Washington and aims to allow timber harvesting and other activities while conserving the spotted owl and other species.

Washington State Forest Practices Regulation

Washington’s Forest Practices Act governs forest practices on non-federal land in Washington.  WDNR administers and enforces regulations promulgated under the Act. The Forest Practices Appeals Board hears appeals of decisions related to forest practice permits.  In 1996, the Forest Practices Board adopted rules regarding spotted owls that included:  (1) defining and prioritizing locations of spotted owls recorded by the Washington Department of Fish & Wildlife (“WDFW”) called “site centers”; (2) establishing Spotted Owl Special Emphasis Areas, intended to contribute to recovery efforts on federal lands; and (3) designating administrative “owl circles.” 2

The Audubon v. Sutherland Lawsuit

In November 2006, the Seattle and Kittitas Audubon Societies filed suit against Weyerhaeuser, Doug Sutherland and Vicki Christiansen of WDNR, and several other Washington State officials and agencies.  The Plaintiffs alleged violations of Section Nine of the ESA on land containing owl habitat in Southwest Washington, including lands that Weyerhaeuser owns. 3 Plaintiffs sought to enjoin:  (1) the State Defendants from authorizing logging of certain spotted owl habitat on private lands; and (2) Weyerhaeuser from logging within four owl circles in Washington.  Plaintiffs alleged that all Defendants’ actions were likely to “harm” and result in a “take” of spotted owls under the ESA.  The ESA prohibits “take” of listed species; “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap capture, or collect, or to attempt to engage in any such conduct.”  16 U.S.C. § 1531(19).  The U.S. Supreme Court upheld the Secretary of Interior’s definition of “harm”:  an act, including “significant habitat modification or degradation . . . which actually kills or injures wildlife.”  Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 700 n.3 (1995) (internal quotations omitted) ( citing 50 C.F.R. § 17.3 (1994)).

In May 2007, the Audubon Court dismissed WDNR and the Board because they are immune under the Eleventh Amendment, and dismissed individual Board members because they are immune under common law from civil suits related to lawmaking functions.  In contrast, the Court found that Sutherland and Christensen, “acting as implementors and enforcers, rather than as quasi-legislators, do not enjoy sovereign immunity in their role as Department administrators.”  Furthermore, state regulators “purportedly authoriz[ing] activities that violate the ESA” can be liable for take in their official capacities.

Under the ESA, a plaintiff seeking a preliminary injunction must show that a violation of the ESA is “at least likely in the future.”  In order to obtain an injunction under Section Nine of the ESA, the Audubon Plaintiffs were required to show “that there is a reasonable likelihood of future habitat modification that is reasonably certain to injure spotted owls by impairing their essential behavioral patterns.”  The Court adopted a science-based “take” standard in the case, finding that “removal of suitable habitat below [40%] of the median annual home range area risks harming spotted owls by removing resources necessary to their essential behavioral functions.” 

Applying the ESA-specific test for preliminary injunctions, and noting that the ESA tipped the balance of hardships and the public interest “heavily in favor of endangered species,” the Court still found that Plaintiffs failed to show a reasonable likelihood that the State Defendants will authorize a take of spotted owls by approving Forest Practice Applications affecting suitable habitat within administrative owl circles outside of Special Emphasis Areas.  The Court therefore denied injunctive relief against the State Defendants. 

In contrast, the Court found that Plaintiffs demonstrated a reasonable likelihood of take in and around four owl circles on Weyerhaeuser’s land.  Specifically, the Court found that “[a]ny additional harvest of suitable spotted owl habitat within 2.7-miles of the center of the . . . circles is reasonably likely to harm spotted owls by impairing their essential behavioral functions.  Additional harvest in these areas, particularly within the 0.7-mile core area, poses a reasonably certain threat of actual injury to these owls in the form of diminished reproductive success or death from starvation, exposure, or predation.”  The Court also found that Plaintiffs demonstrated that Weyerhaeuser intends to harvest suitable spotted owl habitat within the 2.7-mile radius circle around each site center, and concluded that “[a]ny harm from logging of these circles will be irreparable[,]” because “[t]he loss of a single listed species is an irreparable harm.”

Accordingly, the Court issued a preliminary injunction to prevent harm to the owls in four owl circles on Weyerhaeuser property, pending a trial on the merits.  Specifically, the Court enjoined Weyerhaeuser “from any further logging of suitable habitat mapped as part of the take-avoidance plans of the mid-1990s within the 2.7-mile radius circles around each of these four site centers.  In those portions of these 2.7-mile radius circles that were not mapped for the take-avoidance plans, Weyerhaeuser [is enjoined from logging] any stands over 50 years in age without conducting a comprehensive survey of the harvest unit.”  Id.at *17.  Trial is set for April 2008.

Audubon v. Sutherland in the Context of Recovery Planning and ESA Liability

This case is part of a larger debate about spotted owl recovery and timber harvest in the Pacific Northwest.  In June 2007, the USFWS proposed reducing the spotted owl’s critical habitat by 22 percent.  72 Fed. Reg. 32450 (June 12, 2007).  In April 2007, the USFWS released a Draft Recovery Plan for the spotted owl.  In that Plan, the USFWS estimated that recovery and delisting of the species could feasibly occur within the next 30 years, at a cost of approximately $198 million.  That determination was based, in part, on the USFWS’ conclusion that barred owls (rather than habitat destruction) represent the primary threat to the species – a conclusion that has met with significant criticism.  USFWS, Draft Recovery Plan for the Northern Spotted Owl (2007) at vi, x.  Additional research is likely needed regarding threats to the owl, as well as its behavior and use of habitat.

Lessons from Audubon v. Sutherland are not limited to the particular facts of timber harvest in spotted owl habitat in Washington State.  The ESA provides for citizen enforcement of its provisions, 16 U.S.C. § 1540(g), and prohibits “any person” from “taking” listed species.  Id. § 1538(a)(1).  Absent an exception, immunity or other defense, even state regulators authorizing activities that could violate the ESA – for example, by issuing timber harvest permits – can be liable for take in their official capacities. Further, private actors typically enjoy fewer potential defenses than state officials.   See id. §§ 1535, 1539 (setting forth the limited exceptions to ESA liability).  

Successful “take” cases are somewhat rare, primarily due to proof issues.  Still, the consequences of ESA violations can be significant.  See id. § 1540(a)-(f) (providing for $25,000 penalties, jail time, and property forfeiture for ESA violations).  In addition to statutory penalties, litigation can result in preliminary or permanent injunctive relief that can prohibit landowners from putting their property to economically beneficial uses.  If ESA-listed species or habitat exist on a landowner’s property, she should consult with an attorney and work with regulators before engaging in any activity that could arguably result in a take under the ESA. 

Jessica Ferrell can be contacted at Marten Law Group PLLC, 1191 Second Avenue, Suite 2200, Seattle, Washington 98101, (206) 292-2636 (Direct), (206) 292-2600 (Main), (206) 292-2601 (Fax), , www.martenlaw.com. Jessica’s practice focuses on environmental and natural resource litigation. She has special expertise in endangered species and marine resource issues in the western United States. Jessica received her B.A. from Cornell University and her J.D. from Lewis & Clark Law School, where she obtained a Certificate in Environmental and Natural Resources Law, won the Davis Wright Tremaine International Law Writing award, and served on the Editorial Board of the Environmental Law Review.

Copyright 2007

1  See also United States v. West Coast Forest Res. Ltd. P’ship, No. 96-1575, 1997 WL 33100698 (D. Or. 1997) (denying United States’ motion to permanently enjoin harvest of 94 acres of privately‑owned forest land containing two spotted owls, but preliminarily enjoining harvest pending completion of radio-telemetry monitoring); United States v. West Coast Forest Res. Ltd. P’ship, No. 96-1575, 2000 WL 298707, at *5-6 (D. Or. 2000) (same).

2 Owl circles have a specified radius and are centered on a spotted owl site center .  See WAC Ch. 222-16 
et seq.  The Board did not establish any Spotted Owl Special Emphasis Areas in Southwest Washington. 

3 Weyerhaeuser is a Washington corporation that owns and manages forest land in Washington where several spotted owl site centers are located.  In 1994, the company committed to:  (1) develop five-year management plans for seven such sites; (2) classify suitable habitat in cooperation with the USFWS; and (3) refrain from harvesting certain stands classified as suitable habitat within 2.2 miles of site centers for five years. In 1995 and 1996, the USFWS approved Weyerhaeuser’s plans to avoid “take” of listed species. Those plans remained in effect until 1999, and were not renewed. 

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