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Marbled Murrelet v. Babbitt

 

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The Ninth Circuit vacated a district court injunction shutting down logging activities in Humboldt County, California. The court held that approval of eight timber harvest plans (THPs) by the California Department of Forestry and Fire Protection (CDF) constituted neither an “agency action” under the Endangered Species Act (ESA)[1] nor a “major federal action” under the National Environmental Policy Act (NEPA)[2] despite the fact that CDF consulted with the Fish and Wildlife Service (FWS) in approving the THPs.

The district court granted a motion by the Environment Protection Information Center (EPIC) to enjoin logging activities to be conducted under the THPs. The district court determined the following: (1) there were serious questions regarding violations of the ESA and NEPA; and (2) there was a balance of hardships tipping in EPIC’s favor.

The Ninth Circuit declined to decide whether the district court had jurisdiction over the ESA claim because of EPIC’s failure to give the sixty-day notice of intent to sue required by the ESA. EPIC contended that letters to the appellants prior to the sixty-day notice period constituted proper notice. The Ninth Circuit decided the case on the merits, rendering the notice dispute moot.

Section 7(a)(2) of the ESA requires consultation between FWS and other federal agencies for any agency action. EPIC argued that CDF’s consultation with FWS regarding eight THPs constituted agency action and should have triggered the agency consultation requirement of the ESA. California state law requires CDF approval of all THPs. CDF approval procedures allow someone submitting a THP to choose among seven options for providing information on spotted owl takings to the director of CDF. The appellants chose the option of providing to CDF an FWS opinion concluding that the timber plans would not likely result in the taking of an owl.

EPIC argued that this strategy involved a delegation of authority to FWS and that CDF’s approval of the THPs hinged on the FWS opinion. EPIC cited a 1996 Ninth Circuit opinion holding that if a federal permit is a prerequisite for a project, the permit issuance becomes a major federal action.[3] The court disagreed, finding the decision to be exclusively the decision of CDF. The FWS concurrence was merely one of seven options available to the appellant and therefore was not a prerequisite for the project. The court pointed to a similar 1996 decision, Marbled Murrelet v. Babbitt (Murrelet I),[4] where FWS advice to lumber companies on how to avoid a “take” of a species under section 9 of the ESA was not determined to be an agency action. The court held in Murrelet I that agency involvement that does not influence private action is not an agency action. Reaching a similar conclusion in the present case, the court held that the FWS concurrence letter clearly indicated that the power to approve the THPs was left with CDF. In addition, the FWS concurrence did not put the agency in control of the THP approval process, and therefore did not create a delegation of authority from CDF to FWS. Because the FWS option was one of seven available to the appellants by state law, the court held there was no federal discretionary involvement in the approval process.

The court’s holding that the FWS involvement was not an agency action led to the conclusion that the involvement also was not a major federal action under NEPA, because a major federal action under NEPA is determined under a more exclusive standard than an agency action under the ESA. Finding a violation of neither the ESA nor NEPA, the court vacated the district court decision and removed the injunction.


[1]16 U.S.C. §§ 1531-1544 (1994).

[2]42 U.S.C. §§ 4321-4370d (1994).

[3]Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996).

[4]83 F.3d 1068, 1074 (9th Cir. 1996).

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