Cascadia Wildlands et al v. Scott Timber Co. et al
AMENDED OPINION AND ORDER: A permanent injunction prohibiting Defendants' implementation of its proposed logging operation is warranted under 16 U.S.C.§ 1540. Plaintiffs are entitled to reasonable attorney fees and costs. Signed on 7/29/2022 by Judge Ann L. Aiken. The Court issues this Amended Opinion and Order with corrections to minor clerical errors discovered after entry of the original Opinion and Order 144 . (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CASCADIA WILDLANDS, THE
CENTER FOR BIOLOGICAL
DIVERSITY, and AUDUBON SOCIETY
Case No. 6:16-cv-01710-AA
OPINION AND ORDER
SCOTT TIMBER CO., ROSEBURG
RESOURCES CO., and RLC
Aiken, District Judge:
This case involves a citizen suit under the Endangered Species Act (“ESA”) 16
U.S.C. § 1540(g)(1)(A). Plaintiffs are environmental organizations Cascadia
Wildlands, the Center for Biological Diversity, and the Audubon Society of Portland.
Plaintiffs seek to permanently enjoin Defendants, private timber companies Scott
Timber Company, Roseburg Resources Company, and RLC Industries Company,
from logging on the Benson Ridge Tract, a private parcel of land Defendants
purchased from the State of Oregon, formerly part of the Elliott State Forest in the
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Coastal Range of Oregon. Plaintiffs allege that Defendants’ logging project, titled the
“Benson Snake” will “take” marbled murrelets, a threatened species of sea bird, in
violation of section 9 of the ESA, 16 U.S.C. § 1538(a)(1)(B).
This case concerns the now titled “Benson Ridge Tract,” also known as “Benson
Ridge,” which was once part of the Elliott State Forest, owned and managed by the
State of Oregon. Benson Ridge was sold to Defendants by the Oregon Department of
State Lands (“DSL”) in 2014. The sale followed a preliminary injunction issued by the
Court against DSL, prohibiting logging in any occupied marbled murrelet habitat in
Benson Ridge and the Elliott State Forest. See Cascadia Wildlands v. Kitzhaber, 3:12cv-00961-AA (D. Or. Nov. 19, 2012) (ECF No. 71). The entire history of this case is
known to the parties and is not set forth in full here.
After Defendants purchased Benson Ridge from the State of Oregon, on August
25, 2016, Plaintiffs filed this action and moved for a preliminary injunction to prevent
Defendants from executing the Benson Snake logging operation. ECF No. 2. On
December 19, 2016, following a hearing on the motion, the Court granted Plaintiffs’
motion and entered a preliminary injunction. Cascadia Wildlands v. Scott Timber
Co., 190 F. Supp. 3d 1024 (D. Or. 2016). Defendants appealed the entry of the
On November 16, 2017, the Ninth Circuit reversed and remanded. Cascadia
Wildlands v. Scott Timber Co., 715 F. App’x 621, 625 (9th Cir. 2017) (unpublished).
On appeal, the Ninth Circuit upheld the finding that Plaintiffs had standing based
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on Cascadia Wildlands’ alleged injury—diminished ability to view the marbled
murrelets. Id. at 623. The Ninth Circuit also upheld findings on three of the four
preliminary injunction factors but remanded to determine whether “it was likely that
marbled murrelets inhabited the area in question and would be harmed by the
project.” Id. at 24-25 (emphasis in original).
On remand, the parties agreed to forego further hearings on the preliminary
injunction in favor of an expedited trial schedule. The parties also agreed to
consolidate the hearing on the parties’ Daubert objections to each other’s expert
witnesses and scientific evidence with the trial on the merits. The Court held a fiveday consolidated Daubert hearing and merits bench trial, beginning May 6, 2019, to
determine whether the marbled murrelet occupies the proposed timber harvest area
and, if so, whether Defendants’ implementation of the Benson Snake project will
result in a “take” of the species in violation of the ESA.
FINDINGS OF FACT
The findings in this section are not comprehensive of every fact the Court
deems reliable presented in the course of the five-day trial and transcribed in no less
than 1,200 pages, together with over 250 pages of trial memoranda, pretrial motions,
declarations, and hundreds of voluminous exhibits. Rather, the findings below have
been selected to provide the parties with the record needed to identify how the Court
arrived at its legal conclusion.
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I. The Parties, Jurisdiction, and Venue
Prior to trial, the parties stipulated to certain facts and set forth those
stipulations in the jointly prepared Pretrial Order, ECF No. 120. Other facts are
drawn from exhibits, declarations, testimony at trial, and the parties’ pre- and posttrial briefing.
Plaintiffs are non-profit environmental organizations whose purposes and
missions include protecting threatened and endangered wildlife, including marbled
murrelets, and their habitat. The protection of marbled murrelets and their forested
habitat is germane to Plaintiffs' organizational purposes. Pretrial Order, ECF No.
120 at 2-3.
Rosemary Francis Eatherington (“Eatherington”) and Max Beeken (“Beeken”)
are members of Plaintiff Cascadia Wildlands. Id. at 3.
Defendants are Domestic Business Corporations in the State of Oregon.
Defendants’ corporate entities have the same address, primary place of business,
president, secretary, and registered agent. Id.
Plaintiffs have met the jurisdictional prerequisites set out in the citizen-suit
provision of the ESA. 16 U.S.C. § 1540(g). Specifically, Plaintiffs and Defendants
qualify as “person[s]” as the term is defined in 16 U.S.C. § 1532(13). Plaintiffs gave
at least sixty days written notice to the Secretary and Defendants as required by
§ 1540(g)(2)(A)(i), and Plaintiffs filed this action in the judicial district in which the
alleged ESA violation occurred as required by § 1540(g)(3)(A). In the Court’s Opinion
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denying Defendants’ Motion to Dismiss, the Court affirmed that Plaintiffs’ pre-suit
notice was legally sufficient. Cascadia Wildlands, 328 F. Supp. 3d at 1130-33.
II. Plaintiffs Proved Standing
In earlier stages of this case, both this Court and the Ninth Circuit held that
Plaintiffs established standing. Cascadia Wildlands, 190 F. Supp. 3d at 1030-32
(preliminary injunction stage); Cascadia Wildlands, 715 F. App'x at 623 (preliminary
injunction appeal); Cascadia Wildlands v. Scott Timber Co., No. 6:16-CV-01710-AA,
2018 WL 3614202 (D. Or. July 27, 2018) (summary judgment stage).
The jurisdictional requirements of Article III necessitate that Plaintiffs
establish standing at every stage of the proceeding, including trial. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992) (standing must be “supported adequately by the
evidence adduced at trial[.]”). To establish Article III standing, the plaintiff must
show (1) an injury in fact, which is an injury that is concrete and particularized, and
actual or imminent; (2) a causal connection between the injury and the conduct; and
(3) a likelihood that the injury will be redressed by a favorable decision. Id. at 56061.
Organizational plaintiffs like Cascadia Wildlands, the Center for Biological
Diversity, and Audubon Society of Portland “may have standing in [their] own right
to seek judicial relief from injury to” themselves. Rodriguez v. City of San Jose, 930
F.3d 1123, 1134 (9th Cir. 2019). An organization may also have standing to bring
claims on behalf of its members if (1) “its members would otherwise have standing to
sue in their own right,” (2) “the interests at stake are germane to the organization’s
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purpose,” and (3) “neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Friends of the Earth, Inc. v.
Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
Having observed Plaintiffs’ live testimony, the Court finds that Plaintiffs have
provided evidence to prove standing to pursue this case.
Injury “in Fact”
Eatherington, a member of Plaintiff Cascadia Wildlands who has lived near
Roseburg, Oregon since 1975, described her decades-long work in forest conservation.
Tr. Vol. 1 at 49. Eatherington regularly uses and enjoys forests for recreation and
aesthetic pursuits, particularly in the Elliot State Forest, which she has been visiting
since 2002. Id. at 51-52. Eatherington also described her enjoyment of bird watching
in old growth forests and photographing big trees, including trees in Benson Ridge.
Id. at 53, 58, 70; see also Pls.’ Exs. 35-39 (photographs Eatherington took visiting
Benson Ridge in 2016 and 2018). Eatherington explained that to see Benson Ridge
clearcut “would be devastating” and that it would be “very, very hard to live with
that.” Tr. Vol. 1 at 78. Eatherington stated that “be[ing] in the Elliot and appreciating
the Elliott and speaking up for the Elliott” has been a significant part of her work in
the past 15 to 20 years. Id. at 54.
As to marbled murrelets, Eatherington has camped, awoken at dawn, and
looked for murrelets in the Elliot State Forest roughly “a dozen times.” Id. at 55. She
participates in organized trips to look for murrelets and has undertaken formal
training to conduct surveys. Id. at 56. Though Eatherington has not conducted a
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formal murrelet survey, she expects to take advantage of opportunities to look for
murrelets in the Elliot State Forest. Id. at 80. Eatherington has not looked for
murrelets in the Benson Ridge Tract but expressed that “if murrelets were extricated”
due to logging, “[t]here would be less murrelets to procreate. And that's just one
example of the wildlife I enjoy seeing, and I would see much less of if this parcel were
clearcut.” Id. at 78.
Defendants attempted to impeach Eatherington with prior statements from
her August 2016 declaration and March 2018 deposition concerning whether she had
“definite plans” to visit Benson Ridge. Id. at 83-84.
The Court find that Eatherington is a credible witness and is not persuaded by
Defendants’ attempt to impeach her testimony with prior statements from her August
2016 declaration and March 2018 deposition. In context, there are no inconsistencies
between her prior statements or between those statements and her trial testimony.
Eatherington has consistently averred that she plans to visit the Elliott State
Forest in the future, including the 4000 road that goes directly through Benson Ridge.
Id. at 89. Her past use of and proximity to the area shows that this is likely enough
to count as “definite,” as the term is used colloquially, even if concrete plans on
specific dates sometimes fall through. Having viewed Eatherington’s live testimony,
the Court finds that she testified truthfully and sincerely at trial. Eatherington
established an injury cognizable as a recreational and aesthetic injury. See Sierra
Club v. Morton, 405 U.S. 727, 734, (1972). Eatherington testified that she plans to
visit the Benson Ridge area to view marbled murrelets in the near future, a factor
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important to the Court’s consideration of whether the injury is imminent. Lujan, 504
U.S. at 564.
Beeken, a member of Plaintiff Cascadia Wildlands, first visited the Elliott
State Forest in 2012 and has been there approximately 150 times. Tr. Vol. 1 at 108.
Beeken explained that since 2012, he returns “to the Elliott several times a year” to
conduct “murrelet surveys, to go hiking and bird watching, to gather mushrooms,”
and also for “wildlife viewing and swimming in the river.” Beeken testified that he
“lived very close to the border of the Elliott for a couple of years, [he] went quite often
during that time, and [he] still go[es] back and visit[s] a couple times a year at least.”
Id. at 108
When asked if he enjoys being in the woods, Beeken responded, “I love it.” Id.
at 109. He explained that the Elliott State Forest is unique in that much of the forest
has not been logged before. Id. at 94.
Beeken is familiar with the Benson Ridge parcel and first visited there in 2013.
Id. at 109-110. He explained, “I’ve been through [Benson Ridge] several times using
the 4000 road to access the interior of the Elliott State Forest. And I’ve also visited
there several times to do bird watching, camping, and looking for marbled murrelets.”
Id. at 139. Beeken enjoys the Benson Ridge parcel because “it contains a lot of older
forests” and “there’s some pockets of really nice trees in there. It’s nice to see.” Id. at
110. He continued: “I enjoy that there’s a whole mix of different kind of trees and
plants to look at. I love that it’s so steep and it contains older forests. That is rare in
other places in the Coast Range.” Id. at 143.
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Regarding his interest in marbled murrelets, Beeken testified that he has a
degree in wildlife science and has worked professionally as a field biologist. Id. at 91.
He has been trained and certified to conduct surveys for marbled murrelets, and he
has participated in formal murrelet surveys for seven years. Id. at 93, 98, 102. He
cares about murrelets and the forests they live in, id. at 124-125, 148, 149, and he cofounded an organization called Coast Range Forest Watch (“CRFW”), which surveys
for murrelets in the Elliott State Forest as one of its primary activities. Id. at 92, 96,
154-155. Beeken has personally conducted about 60 or 70 surveys for marbled
murrelets in the Elliott, id. at 109, and he plans to continue to be certified and to
conduct murrelet surveys in the future. Id. at 98-102.
Beeken explained that CRFW surveyed for marbled murrelets in Benson
Ridge in 2014. Id. at 110-11; see also Pls.’ Ex. 22 (survey forms); Pls.’ Ex. 24 (pictures
and maps); Pls.’ Ex. 25 (communications). He has since returned to the area “several
times to do bird watching, camping, and looking for marbled murrelets.” Tr. Vol. 1 at
139. Beeken described a trip in 2018, in which he camped a quarter of a mile from
Defendants’ property and looked for murrelets at dawn. Id. at 142-143 (discussing
trip); id. at 145-146 (describing the location); see also Pls.’ Ex. 38 (pictures of Beeken
in the Benson Ridge parcel).
Beeken enjoys looking for murrelets on adjacent public lands. Tr. Vol. 1. at 142143. Beeken plans to continue using and enjoying the forests, trees, and wildlife in
and around Benson Ridge. Id. at 148-149. He plans to use the 4000 road “several
times a year” and he has specific plans to return to the area in July of 2019 to camp
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and look for murrelets. Id. at 144-145. Further, his work with CRFW will continue to
involve regular murrelet surveys in the Elliott, including the area around Benson
Ridge. Id. at 145-147.
Beeken believes the proposed clearcut will negatively impact his ability to
observe murrelets in the Benson Ridge area, including on adjacent public lands. Id.
at 152. He explained, “the less of their habitat that exists in an area, the less
opportunity they have to come and nest.” Id. at 152. He also explained that
fragmentation of the habitat “would have impacts on the forest around it when
considered as part of a larger whole.” Id. at 152. When asked why “all of this matters,”
Beeken answered “It matters because there’s just not very much forest left in the
Coast Range around where I live that hasn’t been logged and replanted before. And
this place is really special. And the marbled murrelet is going extinct, and it just is
kind of upsetting to me that we’re still harvesting its habitat even when it’s so rare
on the landscape.” Id. at 153.
The Court finds that Beeken would suffer a tangible, concrete injury if he were
to experience diminished viewing abilities of the marbled murrelet. Lujan at 561.
Plaintiffs have proved injury as to Beeken.
Causation and Redressability
As to causation and redressability, the Court finds Plaintiffs proved that the
injury to Eatherington and Beeken described above is one “fairly traceable” to
Defendants’ proposed logging operation and “not the result of the independent action
of some third party not before the court.” See Mendia v. Garcia, 768 F.3d 1009, 1012
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(9th Cir. 2014) (setting out standard to determine causation) (internal quotation
Plaintiffs’ aesthetic and recreational injuries are connected to the harvest of
Benson Ridge because if Defendants do not harvest the Benson Ridge parcel,
Plaintiffs’ injuries would not occur. The Court also finds that Plaintiffs proved a
“substantial likelihood” that enjoining Defendants’ proposed logging operation would
redress any injury to Plaintiffs connected to marbled murrelets. See Northwest
Requirements Utilities v. F.E.R.C., 798 F.3d 796, 806 (9th Cir. 2015) ("Redressability
requires “a substantial likelihood that the injury will be redressed by a favorable
judicial decision.”). Accordingly, Cascadia Wildlands has standing to bring claims on
behalf of its members, Eatherington and Beeken. See Friends of the Earth, Inc., 528
U.S. at 181 (setting forth factors for organizational standing).
III. Evidentiary Objections to Expert Testimony
Before the Court turns to its findings on the merits in this case, it must
address, under the Federal Rules of Evidence and Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993), Defendants’ objections to the admissibility of
Plaintiffs’ expert witnesses’ testimony. Defendants timely raised objections at trial
to the reliability of Plaintiffs’ experts, Tr. Vol. 1 at 195, 285; 211, 285, 286, and briefed
those objections after trial. See Defs.’ Post-Trial Briefing, ECF Nos. 138, 141.
Defendants also raise objections that the Court finds go to evidentiary weight and
credibility, rather than admissibility. Those objections will be addressed elsewhere in
the Court’s findings as they logically arise in the course of discussion of evidence.
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Daubert Objections to Admissibility of Evidence
Post-trial, Defendants argue that Plaintiffs’ experts, Richard Golightly, Jr.,
Ph.D. (“Golightly”), and Gary Falxa, Ph.D. (“Falxa”), are not qualified to testify about
matters beyond “their own relevant research and published work.” ECF No. 138 at
19; see also id. at 19 n.21 (asserting that Plaintiffs’ experts’ testimony went “far
beyond their own actual experience, as well as their expertise and qualifications”); id.
at 20 (asserting that Falxa is “completely unqualified to render opinions in
interpreting the meaning of survey data collected by [Defendants’ marbled murrelet
surveyors], on the likelihood and locations of possible nesting in the Benson Ridge
Tract, on potential ‘edge effects,’ and related issues,”).
Federal Rule of Evidence 702 governs the admissibility of expert testimony. It
provides that a witness “qualified by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if”:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
Under Daubert and its progeny, a trial court’s inquiry into admissibility is a
flexible one. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th
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Cir. 2013). Rule 702 requires trial courts to determine whether a witness is qualified
to testify as an expert. Also, under this rule, “trial courts must assure that the expert
testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’”
Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (quoting Daubert, 509 U.S. at
597). “Expert opinion testimony is relevant if the knowledge underlying it has a valid
connection to the pertinent inquiry. And it is reliable if the knowledge underlying it
has a reliable basis in the knowledge and experience of the relevant discipline.” Id.
at 565 (citation and internal quotation marks omitted).1
To determine reliability, trial courts must assess the expert’s reasoning or
methodology, using as appropriate such criteria as (1) testability, (2) publication in
peer reviewed literature, (3) known or potential error rate, and (4) general
acceptance. Daubert, 509 U.S. at 592–94. This list of factors from Daubert “neither
necessarily nor exclusively applies to all experts or every case.” Kumho Tire, 526 U.S.
at 141. It “was meant to be helpful, not definitive,” id. at 151, and trial courts have
discretion to decide how to test an expert’s reliability as well as whether the testimony
is reliable, id. at 152, based on “the particular circumstances of the particular case[.]”
Id. at 150.2
The “helpfulness” or relevance requirement in Rule 702 has also been
described as an issue of “fit.” Daubert, 509 U.S. at 591. As the Supreme Court
explained in Daubert, “‘[f]it’ is not always obvious, and scientific validity for one
purpose is not necessarily scientific validity for other, unrelated purposes.” Id. In
short, “Rule 702’s ‘helpfulness standard requires a valid scientific connection to the
pertinent inquiry as a precondition for admissibility.” Id. at 591–92.
Other factors that courts have considered in determining reliability include
(6) non judicial uses and experience with the process or technique; (7) its novelty
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Under Rule 702, methods to qualify an expert witness are broad, and extend
beyond “experience, training, or education” to include “knowledge” and “skill” as well.
Fed. R. Evid. 702. Under the Federal Rules of Evidence, “an expert is permitted wide
latitude to offer opinions, including those that are not based on firsthand knowledge
or observation.” Daubert, 509 U.S. at 592.
That Golightly and Falxa may not have conducted research on each subject
addressed in their testimony does not mean that they are not qualified as an expert
on those subjects or that their opinions are unreliable.
Golightly testified at trial concerning his background, education, experience,
training, knowledge, and skill, among many other pertinent qualifications. Golightly,
Tr. Vol. 1 at 229-250; Pls.’ Exs. 1, 2.
Golighty is a professor emeritus in the Department of Wildlife at Humboldt
State University. He received his Ph.D. in Zoology3 at Arizona State University in
and relationship to other methods of analysis; (8) the qualifications and professional
stature of the expert witness; (9) the types of error experienced, whether likely to
favor the offering party or understate what he seeks to prove; (10) the existence of a
body of professional literature appraising the process or technique; (11) whether the
opinion grows from independent research or was developed for purposes of
litigation; (12) whether the expert has unjustifiably extrapolated from an accepted
premise to an unfounded conclusion; (13) whether the expert has adequately
accounted for alternative explanations; (14) whether the expert has exercised the
care appropriate to professional work; and (15) whether the field is known to reach
reliable results in the area of the proposed testimony. See 3 FEDERAL EVIDENCE
RULE 702 § 7:10 (Mueller & Kirkpatrick eds. 4th ed. 2021); Fed. R. Civ. P. 702
advisory committee’s note to 2000 amendments.
Zoology is the study of animals, including animals’ ecology, behavior, and
physiology. Tr. 229:22, 230:10-12.
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1981 and began working as a professor at Humboldt State the same year. For the
past two decades, Golightly’s research has focused on seabirds, and he began
researching marbled murrelets specifically in 1995. His marbled murrelet research
has included studies using telemetry to track murrelets and assess the characteristics
of their inland flight, nesting locations, how they spend time at sea, reproduction,
nest success, and nest predation; studies involving capturing murrelets at sea to
investigate their diets and the role that ocean conditions and prey resources play in
murrelet populations and reproduction; and studies testing aversive conditioning
which mimic murrelet eggs to develop mechanisms to protect murrelet eggs from
forest predators. This research has resulted in dozens of peer-reviewed publications,
and Golightly has received two “Professional of the Year” awards from the Wildlife
Society for his marbled murrelet research. Golightly has also authored or co-authored
portions of technical reports on marbled murrelets for state and federal agencies and
served as an expert marbled murrelet consultant for two wind projects and a Habitat
Conservation Plan. Golightly has been a member of the Pacific Seabird Group for over
twenty years and has been an active member of the group’s marbled murrelet
The Court finds that Golightly’s education, research, and experience qualify
him to testify as an expert on a wide range of topics related to marbled murrelet
biology and ecology. The Court further finds Golightly a very compelling and credible
witness and gives his testimony significant weight, with the exception of Golightly’s
testimony about predation by squirrels. Although Golightly’s expert report notes that
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squirrels are “suspected nest predators” for murrelets, Ex. 1 at 17, his opinions
regarding increased predation risk focused on avian predators. Id. at 29-30.
Accordingly, I have not considered Golightly’s testimony on squirrel predation.
Falxa is a wildlife biologist who worked for the United States Fish and Wildlife
Service (“FWS”) for over two decades before retiring in 2016. He received his Ph.D. in
Zoology from the University of California at Davis in 1992 and joined the Service in
1994. Much of Falxa’s work has been with birds in the field of ornithology. He began
working on marbled murrelet issues for FWS in 2000 when he transferred to the
Arcata, California Field Office. There he assisted with the implementation of Pacific
Lumber Company’s Habitat Conservation plan, which required the company to
consult with FWS on timber activity that might impact marbled murrelets.
Falxa was the company’s primary contact at FWS and was tasked with
identifying and minimizing those impacts. Then, in 2001, Falxa became involved in
the Northwest Forest Plan marbled murrelet monitoring program, a multi-agency
effort with researchers and statisticians from several state and federal agencies, as
well as from universities in Oregon and Washington, aimed at tracking trends in
marbled murrelet populations and nesting habitat within the planning area. Falxa
started out as supervisor of his office’s at-sea survey crew. Then he joined the
population monitoring team in 2002 and, by 2006, he became the lead for the entire
program, which included the population monitoring program as well as a habitat
monitoring program. During that time, Falxa continued to review proposed activities
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on private and federal lands for potential impacts to murrelets. Falxa also
represented FWS in evaluating forest stands occupied by marbled murrelets for their
value as mitigation for an oil spill off the coast of Northern California, which killed
many marbled murrelets.
Falxa authored or reviewed technical reports for federal and state agencies,
which has required him to stay up to date on and analyze the body of literature
concerning marbled murrelets and the impacts of land management on the species.
He served as a technical editor on a report that provided a progress update on the
first 20 years of the Northwest Forest Plan and co-authored the report’s chapter on
the marbled murrelet. Falxa also co-authored a FWS 5-year status review of marbled
the murrelet under the ESA and a marbled murrelet chapter of a Forest Service
science synthesis report. Further, he served as an independent peer reviewer of an
Oregon Department of Fish and Wildlife biological status review of the marbled
murrelet under the State’s Endangered Species Act.
Falxa has been a member of the Pacific Seabird Group (“PSG”) since 2002. He
regularly attends and presents at its conferences. He is also a member of the PSG’s
marbled murrelet technical committee, and regularly attended their meetings to
present on the Northwest Forest Plan marbled murrelet monitoring program while
at FWS. In 2015, Falxa became active in the statistical subgroup of the working group
tasked with revising the PSG Protocol. In 2016, he drafted the subgroup’s report
summarizing a 2016 re-analysis of the statistical basis of the PSG Protocol, performed
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by Darryl MacKenzie, Ph.D., and making recommendations based on the results. In
2018, Falxa was asked to head the statistical subgroup.
It is evident that Falxa has significant knowledge and experience in marbled
murrelet biology and ecology, both at sea and inland, built during his decades of
service at FWS, as well as expertise on the statistical bases of the PSG Protocol.
Defendants assert that much of Falxa’s testimony on key issues in this case
was based on his “mere review and interpretation of scientific literature, not on any
direct field experience, expertise, or qualifications studying murrelets in an inland
setting.” ECF No. 138 at 20.
The Federal Rules of Evidence do not require experts to build their expertise
in an academic or research setting, and Falxa’s regulatory work for the FWS involved
spending a significant amount of time on the ground in potential and actual marbled
murrelet habitat, conducting murrelet surveys, observing nest sites, and evaluating
habitat quality, among other things. As discussed above, Falxa’s roles also required
him to stay current on the literature regarding marbled murrelets in inland settings
and apply that literature to real-world management decisions.
The Court finds that Falxa is a highly compelling and credible witness and
gives his testimony significant weight.
Defendants also raise Daubert objections regarding the reliability of the
opinions Falxa rendered that relied on the “preliminary analysis” discussed in his
supplemental expert report. See ECF No. 138 at 24; Tr. Vol. 3 at 625. Defendants
contend that “Falxa did not disclose any of the data used in the preliminary analysis,
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which prohibited Defendants (or the Court) from evaluating and verifying any of the
methods or calculations that were used in conducting the analysis,” and that “all such
testimony should be exclude or ignored.” Id. 4
Defendants cite no authority for the proposition that an expert must disclose
the underlying data used in a study that the expert, in turn, used to form their
opinions. In any event, Falxa explained on the record that the dataset at issue was
used in a separate, subsequent analysis for marbled murrelet surveys conducted in
California, Oregon, and Washington between 1988 and 2014. Tr. Vol. 3 at 629; see
also Ex. 59 (MacKenzie 2016 Report). The Court does not find a basis to exclude the
evidence under Daubert.
Defendants urge the Court to find that Golightly and Falxa offered opinions on
“ultimate issues” in this case and such testimony should be excluded. ECF No. 138 at
Federal Rule of Evidence 702(a) requires that expert testimony “help the trier
of fact to understand the evidence or to determine a fact in issue.” Federal Rule of
Evidence 704(a) clarifies that “[a]n opinion is not objectionable just because it
Defendants also urge the Court to find inadmissible Golightly’s testimony on
the risks of increased solar radiation and sun exposure, as well as “post-expert
report research.” ECF No. 138 at 21-22. The Court declines to do so. Golightly’s
expert report adequately disclosed opinions on impacts from increased solar
radiation and sun exposure. Further, on review of the transcript, much of the postexpert report research testimony was elicited by Defendants on cross-examination.
At any rate, the Court did not rely on those portions of testimony in reaching its
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embraces an ultimate issue.” “[I]f the terms used by an expert witness do not have a
specialized meaning in law and do not represent an attempt to instruct the jury on
the law, or how to apply the law to the facts of the case, the testimony is not an
impermissible legal conclusion” United States v. Diaz, 876 F.3d 1194, 1199 (9th Cir.
Defendants do not argue that Plaintiffs’ experts offered opinions on ultimate
issues of law. Defendants acknowledge that the ultimate issues are “factual.” See ECF
No. 138 at 19 (noting that the ultimate issues were “identified and discussed above”);
id. at 3 (asserting that “there are two ultimate issues for the Court to decide under
the applicable legal framework” and that they are “factual issue[s]”). Because this
was a bench trial with the Court sitting as factfinder, there was little, if any, danger
that any expert witness would “attempt to instruct the [factfinder] on the law, or how
to apply the law to the facts of the case.” Instead, Defendants appear to object to the
form and scope of Plaintiffs’ experts’ testimony.
Lastly, Defendants ask the Court find that Falxa is biased, and thus exclude
his entire testimony. ECF No. 138 at 22. Defendants also object to, as excludable,
“any and all of Dr. Falxa’s testimony related to potential edge-effects of the proposed
harvest,” because “Dr. Falxa has never conducted edge-effect research [and] barely
mentioned edge-effects in his expert report.” Id. at 23. Defendants have not produced
any basis on which the Court could find inadmissible Falxa’s entire testimony, much
less his testimony related to “edge effects.” As a general rule, bias is not a permissible
reason for the exclusion of expert testimony. “[E]vidence of bias goes toward the
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credibility of a witness, not his competency to testify, and is an issue for the
[factfinder].” United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001).
IV. The Marbled Murrelet
Physical Characteristics and Behavior
The marbled murrelet, in Latin, Brachyramphus marmoratus, is a seabird of
the alcid family. ECF No. 120 at 3. Alcids are seabirds that feed on fish in the ocean
and use their wings to fly under water as penguins do. Falxa, Tr. Vol. 2 at 589.
Marbled murrelets are notoriously difficult to detect due to their “high velocity
flight, small size, cryptic plumage, and crepuscular behavior.” Murrelets are “cryptic”
in that their feather patterns are camouflaged, and, when they go to their nest, they
do so quietly and in the early twilight, making murrelets difficult to see. Golightly,
Tr. Vol. 1 at 255. The murrelet is a “secretive nester,” and “nests individually.” Tr.
Vol. 4 at 1004. Existence of the marbled murrelet was known to ornithologists by the
late 1700s, but it took about 200 years to find the first nest in 1974 in California.
Golightly, Tr. Vol. 1 at 253; ECF No. 120 at 5.
Marbled murrelets do not nest every year. Marine conditions and offshore food
availability and distribution influence murrelet nesting distribution and patterns. In
Oregon, the murrelet nesting season is considered to run from April 1 to September
15. ECF No. 120 at 5.
With few exceptions, murrelets fly inland to nest in mature and old growth
coniferous forests throughout most of their range. ECF No. 120 at 3; Pls.’ Ex. 11 at 6.
Murrelets do not build nests, but instead lay a single egg on thick, flat tree branches
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with natural depressions and a blanket of moss. ECF No. 120 at 3; Pls.’ Ex. 11 at 6;
Golightly, Tr. Vol. 1 at 299.
Murrelet occupancy is most related to availability of low elevation,
unfragmented, old-growth forests close to highly productive marine areas.
Fragmentation and isolation of old growth forests have an adverse effect on both
murrelet occupancy and abundance. Golightly, Tr. Vol. 2, 404-406
Murrelets nest very high in trees and a single egg sitting up on top of a large
branch cannot easily be seen from the ground. Golightly Tr. Vol. 1 at 255. Generally,
only very large trees contain such platforms, and murrelets are thus closely
associated with old growth and other mature forests that contain suitable platforms
for nesting. Id.
During the nesting season, marbled murrelet feathers are cryptically colored
in browns and whites to blend into the forest environment making them difficult to
spot while inland. The female lays one egg and the male and female incubate the egg
in shifts while the other bird feeds in the ocean. The egg is usually incubated for 30
days. Typically, the male and female switch incubation shifts at dawn or dusk to avoid
detection by predators.
Although it has not been documented or found to occur in Washington, Oregon,
or California, murrelets have been documented nesting on the ground in Alaska,
especially near or along cliffs. Id.
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Endangered Status and Primary Threats
1. Endangered Status
FWS listed the marbled murrelet as a threatened species under the ESA in
California, Oregon, and Washington in 1992. One of the greatest threats to murrelets
is forest fragmentation.
At the time of listing, the U.S. Fish and Wildlife Service stated that the
“marbled murrelet is threatened by the loss and modification of nesting habitat (older
forests) primarily due to commercial timber harvesting” and because of “mortality
associated with current gillnet fishing operation off the Washington Coast and the
effects of oil spills.” 57 Fed. Reg. 45,328 (Oct. 1, 1992). Further, that “[t]he principal
factor affecting the marbled murrelet in the three-state area, and the main cause of
population decline has been the loss of older forests and associated nest sites.” 57 Fed.
Reg. at 45,330.
2. Primary Threat: Forest Fragmentation
The vast and rich old-growth forests that once blanketed the Pacific Northwest
are now almost entirely gone. Ex. 131 (FWS 2009 Report) at 32 (noting that at least
82 percent of the mature forests that once existed in Western Oregon and Washington
have been logged). At trial, many similar reports based on data throughout the years
evidenced consensus in the scientific community concerning the detriment to the
murrelet caused by loss of old growth forests.
In a 2018 status review of the marbled murrelet, the Oregon Department of
Fish and Wildlife (“ODFW”) compiled data from “documented and verifiable scientific
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information and other best available data on the Marbled Murrelet.” Pls.’ Ex. 12 at
3. In its report, ODFW reviewed many aspects of the species’ biology, life history,
population trends and demographics, marine and terrestrial habitat conditions,
threats, and the adequacy of state and federal programs and regulations. The Court
finds this report, admitted at trial in conjunction with Golightly’s expert testimony,
to be helpful in its determinations.
In general, marbled murrelet nest sites are negatively associated with
increasing amounts of forest fragmentation. Golightly, Tr. Vol. 2 at 373-374. In
southern Oregon, researchers found that murrelets were most abundant in
unfragmented old-growth forest patches located within mature second-growth forest.
Pls.’ Ex. 12 at 30. Further, that areas occupied by murrelets had less fragmented and
isolated old-growth forest compared to unoccupied areas. Id.
Much of the murrelet’s older forest nesting habitat in Oregon was removed by
wildfire and industrial logging in the last century.
Today, marbled murrelets persist in highly fragmented forest remnants and
mostly on public lands. Pls.’ Ex. 12 at 85. Identified public lands where murrelets
persist include the Siuslaw and Rogue River-Siskiyou National Forests; forests
owned by the BLM; and the state-owned and managed Tillamook, Clatsop, and Elliott
State Forests. Id. On nonfederal lands in Oregon between 1993 and 2012, 98% of loss
to murrelet habitat was attributable to timber harvest, most of which occurred in the
Coast Range. Id.
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The murrelet population in Washington, Oregon, and California “continues to
be subject to a broad range of threats such as nesting habitat loss, habitat
fragmentation, and predation.” Golightly, Tr. Vol 2 at 398-99; Pls.’ Ex. 17.
Defendants’ expert, Dr. John Marzluff agreed that “maintaining existing suitable
murrelet nesting habitat is absolutely critical to prevent further species decline.” Tr.
Vol. 5 at 1159; see also id. at 1122 (affirming that murrelets are “hypersensitive to
FWS and the United States Forest Service (“USFS”) estimated in a 2018 report
that 59,200 acres of higher suitability murrelet habitat was removed due to timber
harvest on non-federal lands in Oregon from 1993 to 2012, as well as 19,400 acres
from federal lands in Oregon. Defs.’ Exs. 180, 184.
V. Benson Ridge
Property Location and Sale Background
The Benson Ridge property is located in portions of Sections 12 and 13,
Township 23 South, Range 12 West, W.M., Coos County, Oregon. It consists of Tax
Lot 600 in Section 12 and 100 in Section 13. The Benson Ridge Tract is approximately
355 acres total and is located roughly five to six miles east and slightly north of the
city of Lakeside in Coos County, Oregon. ECF No. 120 at 13. Defendants note that
FWS has not designated the Benson Ridge Tract is as critical habitat for the marbled
The Elliott State Forest is approximately 94,000 acres. About half of the Elliott
State Forest is 80 years of age or older and potentially suitable for marbled murrelet
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nesting. Defs.’ Ex. 115. Most of the older forests in the Elliott regenerated naturally
following the Coos Bay Fire of 1868 and are approximately 90-150 years old, though
some remnant scattered older trees (more than 150 years old) exist that survived the
fire. Defendants completed their purchase and acquired title to the entire Benson
Ridge Tract from the State of Oregon on June 4, 2014. Plaintiffs served their initial
pre-suit notice letter on Defendants on June 3, 2014.
Benson Snake Logging Operation
In 2016, Defendants submitted a notification to the Oregon Department of
Forestry, outlining their intent to clearcut 49 acres in the southern portion of the
Benson Ridge parcel. ECF No. 120 at 22-23; see Appx. Fig. 1 (Defs.’ Ex. 104). (maps
of the parcel and proposed logging unit). The 49 acres of the Benson Snake logging
operation include mature forest, approximately 130 years of age, with the exception
of leave trees and stream buffers required by the Oregon Forest Practices Act.
VI. The PSG Protocol
The Parties stipulated to a number of key portions of text compiled by the
Pacific Seabird Group (“PSG”) in its publication titled “Methods for Surveying
Marbled Murrelets in Forests: A Revised Protocol for Land Management and
Research” (referred as the “PSG Protocol” or “Evans Mack et al. 2003”). See ECF No.
120 at 5-13 (stipulations); Pls.’ Ex. 11 (the PSG Protocol). Those stipulations,
testimony from experts at trial, and other relevant portions of the PSG Protocol are
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PSG Protocol Background and Objectives
The PSG is a society of scientists, seabird researchers, land managers and
other seabird enthusiasts “dedicated to the study and conservation of seabirds and
their environment,” including marbled murrelets. The PSG developed a Protocol
“designed to provide researchers and land managers with standardized techniques to
detect murrelets in forests.” Id. at 6.
The PSG stated the objectives of its Protocol as follows:
“The objectives of this Protocol are to provide scientifically-based
methods for biologists, managers, and researchers to: (1) document the
occurrence or probable absence of murrelets in a forest at the time of
surveys; (2) interpret the biological significance of behaviors observed
during surveys to evaluate how murrelets are using forests (i.e., classify
sites as ‘presence’, ‘occupied’, or ‘probable absence’); (3) identify the
geographic distribution of the marbled murrelet; and (4) provide
consistency in surveys among land managers. This Protocol is based on
analyses of 10 years of survey data to provide a statistically reliable
approach to classifying surveyed areas.”
Id. at 7. While applicable in Washington, Oregon, and California, the PSG Protocol
may require modification for use in British Columbia and Alaska. Id. at 2.
Identifying Potential Marbled Murrelet Habitat
The PSG Protocol explains that marbled murrelet nests have been found
primarily in mature and old-growth habitat and, in a few cases in Oregon, in forests
of 60-80 years that have trees with dwarf mistletoe or other deformations or
structures that provide a nest platform. Douglas-fir, coast redwood, western hemlock,
western red cedar, yellow cedar, mountain hemlock, and Sitka spruce have been
found by researchers to predominate nest stands. Id. at 7.
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Researchers have also found a tree nest in a large deciduous red alder and
nests on cliffs. Therefore, the PSG Protocol states “potential habitat” that should be
surveyed for murrelets is defined as (1) mature forests (with or without an old-growth
component) and old-growth coniferous forests; and
- - (2) younger coniferous forests that
have platforms. Id.
A “platform” is a relatively flat surface at least 4 inches in diameter and in
most cases, 33 feet high in the “live crown of a coniferous tree.” Id. Platforms can be
created by a wide bare branch, moss or lichen covering a branch, mistletoe, witches’
brooms, other deformities, or structures such as squirrel nests. Id. Researchers have
found that the presence of platforms appears to be the most important forest stand
characteristic for predicting murrelet presence in an area.
Platform presence is more important than tree size, which alone is not a good
indicator of platform abundance. Therefore, any forested area with a residual tree
component, small patches of residual trees, or one or more platforms should be
considered “potential habitat” for murrelet nesting. Id. at 8. Continuous potential
habitat contains no gaps in suitable forest cover wider than 100 meters (328 feet). Id.
Defining Survey Areas and Survey Sites
According to the PSG Protocol, the “minimum area surveyed should be the
potential habitat that falls within the proposed project area, and within one-quarter
mile (402 meters) of the project area boundary that is contiguous with the project
area.” Id. at 11 (bold and italics in original).
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The purpose of the one-quarter mile guide is to increase the likelihood that a
“continuous block” of potential habitat is surveyed, not just that portion that lies
within the project boundary.
When a project is planned in a large expanse of potential habitat, surveying
the entire continuous block will allow for a more thorough evaluation of the potential
impacts to portions of the habitat that are greater than one-quarter mile from the
project boundary. For example, in many situations, the potential habitat occurs in a
long, linear configuration. When the project area is at the edge of this large block,
even a one-quarter mile boundary might not include the entire stand of potential
In accordance with those principles, a “survey area” thus includes all suitable
murrelet nesting habitat in the proposed project area as well as any suitable murrelet
nesting habitat that is contiguous to the proposed project area and within one-quarter
mile of the project area boundary. ECF No. 120 at 6.
A “survey site” is the unit by which survey visits are designed and carried out,
and the unit to which the requisite number of survey visits apply. Pls.’ Ex. 11 at 12.
The PSG Protocol recommends limiting the size of a survey site to 61 hectares (150
acres). Id. The Protocol admonishes that the “survey site” boundary should not be
confused with the management project or survey area boundaries. Typically, survey
areas are larger than 61 hectares (50 acres) and should be divided into smaller “sites.”
If the entire survey area is small—less than 61 hectares (150 acres), the survey
area is essentially “encompassed” by the survey site, and, in that case, the terms
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“survey site” and “survey area” are interchangeable and the Protocol applies equally.
Id. at 12.
The recommended number of stations within each survey site varies to provide
adequate coverage by observers across the site. The Protocol states that “[a] general
rule of thumb is that your stations should be located throughout the site.” Id. at 15
(bold in original). The “[P]rotocol recommends that 200 meters be set as the maximum
detection distance for audio-visual surveys, and thus defines station effective area as
a 200-meter radius circle centered on the survey station [(30 acres)].” Id. at 14.
However, a higher density of stations may be required based on the area, topography,
and vegetation of the site. Stations are distributed throughout each survey site and
are located so that the view to the sky is unobstructed (e.g., forest clearings, adjacent
to streams). The Protocol also recommends that field visits identifying the most
suitable murrelet nesting habitat be factored into station placement.
The PSG Protocol directs that each year, stations are visited in the breeding
season between May 1 and August 5 to obtain 5 to 9 replicate visits within each
survey site to assess occupancy status. Beeken, Tr. Vol. 1 at 105. If a site contains
only a single station, then this station must be visited 5 to 9 times to assess site
occupancy. If a site contains between 2 and 5 stations, then stations will need to be
revisited over time to obtain the minimum number of visits to determine occupancy
status at the site. If a site contains more than 9 stations, then each station need only
be visited once. However, two stations visited on the same day only represent a single
visit to the site. If no presence detections are made within the first 5 visits, then the
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survey ceases for the year. Visits should be spaced to occur every 6 to 30 days to
ensure that survey occasions occur during the most active periods.
Behaviors Indicating “Probable Absence,” “Presence,” and
Because marbled murrelet nests are extremely difficult to find, the PSG
Protocol takes a different approach to identifying which forest stands the murrelet
occupies, based on observation and detection. Golightly, Tr. Vol. 1 at 265. A detection
is the “sighting or hearing of one or more birds acting in a similar manner and
initially occurring at the same time.” Pls.’ Ex. 11 at 8. The PSG Protocol study design
relies upon observed murrelet behaviors to “lead to classifications of sites and,
ultimately, survey areas.” Id. at 27; see also Beeken, Tr. Vol. 1 at 105 (explaining that
the unit of measure for surveys under the PSG Protocol is the visual or audio
detection of a single bird or multiple birds). According to the PSG Protocol:
1. Probable Absence
The term “probable absence” indicates a site of potential habitat where no
murrelets were detected after the requisite number of surveys.
The term “presence” indicates a site of potential habitat where murrelets were
detected, but subcanopy behaviors were not observed. Additional survey effort is
required at areas with birds present to determine whether or not a site is occupied.
Presence sites include those with: non-stationary audio detections; birds flying in
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small- or large-radius circles above the canopy; above-canopy dives (that do not end
below the canopy); or other above-canopy flight.
If a single visual detection of subcanopy flight is observed at any one survey
station, then the entire survey area, including all survey sites within the survey area,
is classified as an “occupied site.” ECF No. 120 at 9; see also Golightly, Tr. Vol 1. at
266 (explaining that the primary behavior the PSG Protocol relies on to determine
whether a particular area is considered “occupied” is “flying beneath the canopy” and
that only those birds that “fly below the canopy are indicative of nesting or nestingrelated behaviors”. Id.
Other behaviors can be observed that indicate whether a site is occupied,
including the following subcanopy behaviors or conditions: discovery of an active nest;
a recent nest as evidenced by a fecal ring or eggshell fragments on structures in the
forest canopy; an old nest cup and landing pad; discovery of a downy chick, an egg, or
eggshell fragments on the forest floor; birds flying below, through, into, or out of the
forest canopy within or adjacent to a site of potential habitat; perching, landing, or
attempting to land on branches; and birds calling from a stationary location within
the site. ECF No. 120 at 9.
Flight behavior includes birds flying over or along roads, young stands, or
recently-harvested areas adjacent to potential habitat. However, only the adjacent
site of potential habitat, not the non-habitat, should be classified as occupied.
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If birds are observed along a road where there is more than one site that the
birds could be using, additional surveys may be required in some cases to determine
which is occupied, if these sites are not part of the same survey area. Some subcanopy
flights, such as low-flying birds observed in steep canyons or crossing ridge lines in
non-habitat areas, are not associated with the site of interest and should not be
considered occupied behaviors.
Significance of Marbled Murrelet Subcanopy Flight
Murrelet subcanopy behavior is a significant indication that a site is occupied
because, for the murrelet, flight is a “costly” behavior. Golightly, Tr. Vol. 1 at 270.
Because of the marbled murrelet’s physical composition—its large body mass in
comparison to its small wings—their flight machinery is not built for dropping into
holes or bouncing around like a robin might. Id. at 268-269. Nor is the murrelet likely
to flit about underneath the forest canopy from branch to branch. Id. at 271. The
murrelet’s physical activities are compromised between being pursuit-divingpredators in the ocean for sustenance and converting to flight in the air—the latter
of which is not easy for the bird and comes at a substantial cost to its energy Id. at
With that in mind, marbled murrelets’ flight patterns are quick and structured
to minimize the cost of flying. Id. The conclusion researchers draw from this is, for
the murrelet, taking on the cost of flying inland represents that there is a high value
benefit for the bird: nesting. Id. at 270. Murrelets live at sea. They do not live in or
roost in trees: they nest in them. Id. Thus, based on the physical constraints on the
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birds, subcanopy flight strongly indicates that the stand is likely important for the
birds’ reproduction. Id. at 271.
If a block of continuous potential habitat is divided into three contiguous
survey sites, and one of those three sites yields subcanopy detections, the entire
survey area is considered occupied, not just that one site, because all the sites form
one large piece of continuous habitat. ECF No. 120 at 12; Pls.’ Ex. 11 at 28.
Defendants called Dr. Falk Huettmann (“Huettmann”), Ph.D., to provide his
opinions about marbled murrelets. Huettmann generally opined that subcanopy
detections are not strong evidence of nesting. Tr. Vol. 4 at 1002-1004, 1009-1010, and
he testified, based on his research in British Columbia, that marbled murrelets are
capable of living in small patches and in fragmented landscapes. Id. at 1005-1006.
After carefully reviewing Huettmann’s education, research, and other
experience, the Court finds that he is qualified to testify as an expert about murrelets
in British Columbia. Similarly, his British Columbia research and its results are
reliable under Daubert and Rule 702, and I give great weight to his testimony about
the robustness of marbled murrelets as a species and the range of the species’
ecological niche. But Huettman’s opinions applying that research to this case are
given less weight as are his critiques of the PSG Protocol, compared to testimony on
similar issues by Plaintiffs’ experts. The PSG Protocol itself recognizes that British
Columbia may present materially different circumstances from the lower 48 states,
noting that “[w]hile applicable in Washington, Oregon, and California,” the PSG
Protocol’s methods “may require modification for use in British Columbia.” Plfs.’ Ex.
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11 at 7.
Importance of Continuous Habitat
The parties have stipulated to the following statements found in the PSG
Protocol. ECF No. 120 at 12-13; Pls.’ Ex. 11.
The Protocol explains that the hypothesis that continuous habitat is important
is based on the following observations on the nesting behavior of murrelets and alcids
“Although Marbled Murrelets nest solitarily, more than one pair of
birds are usually found in a single, continuous forest (Nelson and Peck
1995). The interaction of murrelets in a single stand seems important
for social and breeding purposes.
“As two or more pairs of murrelets might nest asynchronously in a
stand (or perhaps even renest), murrelets could be nesting at different
times - and therefore different places - in the same stand in the same
“Over several years, murrelets might use more than one nest tree or
use different parts of a stand for nesting (Nelson 1997). Murrelets
exhibit high nest site fidelity, with some stands supporting 20+ years
of murrelet use (Divoky and Horton 1995).
“A few nest trees have been used in consecutive years (Singer et al.
1995, Nelson 1997, Manley 1999); however, most are not, suggesting
that breeding birds may move elsewhere within a stand in successive
years or may not nest every year.”
Pls.’ Ex. 11 at 11.
Occupied Stands Treated as Occupied Indefinitely
The detection of occupied behaviors in forests implies that the area serves as a
breeding location for murrelets. ECF No. 120 at 13. The Protocol does not contain
data from which to form a recommendation for how long after surveys are completed
that the results of those surveys remain valid. Id. Murrelet surveys reflect the
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breeding status of sites for the time period during which surveys were conducted. As
a breeding area, murrelets may nest there every year, in alternate years, or once in
several years. Id. The extent of use, re-use, or abandonment of nest areas, or
establishment of new areas, is unknown.” Id. (quoting PSG Protocol, Pls.’ Ex. 11 at
28). The Protocol recommends that “occupied stands should be treated as occupied
The PSG Protocol is a method of combined observational tools and statistical
analysis, whereby it seeks to follow the “frequently-used convention of establishing a
target of 95% confidence of survey outcome.” ECF No. 120 at 10. If a single visual
detection of subcanopy flight is observed at any one survey station, then the entire
survey area, including all survey sites within the survey area, is classified as an
“occupied site” according to the PSG Protocol. Id. The Protocol states:
Occupied sites include nest sites, but an occupied site also can be used
for purposes other than nesting that are essential for the complete life
history of the bird. For example, courtship displays in other alcids can
take place near, but not at, the breeding site. Murrelets have been
observed landing in unsuitable trees in unsuitable habitat contiguous
with or near suitable habitat in Oregon and British Columbia (S. K.
Nelson, pers. comm.). These landings generally involve more than one
murrelet and the birds remain standing in these young trees for a period
of time. Thus, the places where birds engage in courtship or other
breeding-related activities might not be in the exact same area or stand
as a nest, but these areas are just as important as nesting sites for the
birds’ life history.
Pls.’ Ex. 11 at 27.
Alternatives to the PSG Protocol
Alternative methods to track marbled murrelets include telemetry, which
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requires a remote device, mounted to a murrelet’s back with a suture, which
transmits location data to the researcher. Golightly, Tr. Vol. 1 at 233-235. To
effectively find nests in a specific forest stand would require birds to be captured at
sea with no guarantee that any of those birds will fly inland to that forest stand. And,
to do so would require a capturing thousands of murrelets and would cost “millions”
of dollars. Id. at 256-260.
A second known technique is called “tree climbing—” which is exactly as it
sounds: a person approved by FWS attempts to climb every potentially suitable tree
in a proposed forest stand to look for nests that have been previously used. Id. at 261,
263. A person cannot climb during nesting season without risking “flushing a bird off
a nest,” so after the season, the climber must look for a little divot on a limb, possibly
with some fecal matter in it. Id. at 261. It takes a very trained tree climber to spot
that little divot where the egg may have been. Id. at 261-262. Further, after nesting
season, climbers would have a short window to look for impressions or fecal matter
before the first rains, which would wash away signs of nesting. Id. at 262-263.
The PSG Protocol is a Well-Accepted and Reliable Method for
Surveying Marbled Murrelets
Defendants offered the testimony of Dr. Marvin Dale Strickland (“Strickland”),
Ph.D., to testify about his opinion on the PSG Protocol from a wildlife study design
perspective, critiquing several aspects of the Protocol and its application in marbled
murrelet surveys. Tr. Vol. 4 at 898-909, 911-916.
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The Court finds Strickland qualified and gives weight to his general testimony
about wildlife study design and the limitations of observational studies. However, the
Court finds that Strickland has little experience with marbled murrelets or the PSG
Protocol. See Tr. Vol. 4 at 897, 926, 927 (acknowledging at trial that he has not worked
on anything related to marbled murrelets before this lawsuit). Accordingly, the Court
gives less weight to Strickland’s critiques of the PSG Protocol and CRFW surveys
and, particularly, aspects of those critiques that turn on issues related to marbled
murrelet ecology, biology, and behavior.
The Court finds that the PSG Protocol has received “consensus” among land
managers, timber companies, scientists, researchers, and governmental entities as
an effective way to identify which forest stands are “occupied” by the murrelet.
Golightly, Tr. Vol. 1 at 252, 265 (Plaintiffs’ expert); Strickland (“Strickland”), Tr. Vol.
4 at 945 (Defendants’ expert stating that the PSG Protocol provides a “reasonable”
and “appropriate” method for collecting data on murrelets); see also Nw. Forest Res.
Council v. Pilchuck Audubon Soc’y, 97 F.3d 1161, 1167 (9th Cir. 1996) (the PSG
Protocol is “the generally accepted scientific methodology employed to determine
whether marbled murrelets are located in, or making use of, a particular inland
forested site for nesting purposes.”).
The evidence at trial showed that the PSG Protocol continues to be widely used
and accepted, including by private industry. Defendants’ surveyors, Western
EcoSystems Technology, Inc. (“WEST”), used the PSG Protocol to evaluate whether
murrelets were nesting in Benson Ridge. Tr. Vol. 3 at 868-869; ECF No. 99 at 36-37.
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Defendants’ witness, Joel Thompson of WEST and Plaintiffs’ witness, Clark
McMahon of CRFW both used the PSG Protocol in their survey work for private
logging companies. Tr. Vol. 1 at 183-184; Vol. 3 at 870-871. Another surveyor for
WEST described in a sworn declaration that the PSG Protocol is the best and most
accepted method for conducting inland surveys for marbled murrelets, and the only
method he has ever used. ECF No. 99 at 45-46 (declaration of Troy Rintz).
The PSG Protocol has been formally adopted by several state and federal
wildlife agencies to ensure compliance with the ESA’s “take” prohibition. Pls.’ Ex. 80
(Oregon state operational policies adopting the PSG Protocol and explaining, “the
purpose of this policy is to reduce the risk of liability for unpermitted ‘take’ of marbled
murrelets,”); Pls.’ Ex. 79 (Washington administrative rules mandating use of PSG
Protocol for murrelet surveys); Pls.’ Ex. 81 (USFS and Bureau of Land Management
binding forest plan rules).
Falxa testified that FWS relies on PSG Protocol surveys and recommends PSG
Protocol surveys to landowners who need to assess whether their properties are
occupied by murrelets. Tr. Vol. 2 at 561-562, 597-598; see also Pls.’ Ex. 18 at 11 (2016
publication by FWS, relying on the PSG Protocol and describing the Protocol (Evans
Mack et al. 2003) as “the best scientific data available”). Falxa also testified that
California state agencies use and rely on the PSG Protocol to conduct surveys and
define occupied habitat. Tr. Vol. 2. at 595-597. When asked whether any state or
federal agencies use any other method to determine murrelet occupancy in a
particular forest stand, Falxa replied, “No. None that I’m aware of.” Id. at 602.
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Accordingly, the Court finds that the PSG Protocol is an effective, appropriate,
and reliable method for surveying and classifying marbled murrelet behavior and
determining whether forest stands are occupied by the marbled murrelet.
VII. Benson Ridge Survey Efforts
The Parties have stipulated that, to become certified murrelet surveyors,
CRFW’s surveyors have gone through the same formal training and certification as
Defendants’ surveyors with WEST. ECF No. 120 at 16.
The area of survey eventually became referred to by Defendants’ surveyors as
the Benson South Survey Area and the area is identified in Defendants’ Exhibit 104
with three divided survey sites highlighted in blue, yellow, and green. See Appx. Fig.
The parties have stipulated that the Benson South Survey Area is 268.7 acres
and is a contiguous block of suitable marbled murrelet nesting habitat. ECF No. 120
at 21. Defendants do not contest that the proposed harvest area contains suitable
marbled murrelet habitat. ECF No. 94 at 20 (“there is a plethora of suitable habitat
in the vicinity of the Benson Snake harvest unit that is suitable for marbled murrelet
WEST named the three survey sites within the Benson South Survey Area:
Benson West (25.3 acres and highlighted in blue), Benson Central (111.8 acres and
highlighted in yellow), and Benson Southeast (131.6 acres and highlighted in green).
ECF No. 120; Defs.’ Ex. 104 (showing color-coded map area).
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Plaintiffs’ expert witnesses have confirmed that the entire Benson South
Survey Area is contiguous suitable marbled murrelet nesting habitat. Tr. Vol. 2 at
331; Tr. Vol 3 at 633-635 (describing suitability); Tr. Vol 2 at 337-338, 340; Tr. Vol. 3
at 635-636 (describing contiguity). The Court finds that testimony reliable and
2014 Survey by Coastal Range Forest Watch
1. Preliminary Information
Primarily using the PSG Protocol, CRFW conducts survey programs for the
marbled murrelet. Beeken, Tr. Vol. 1 at 95, McMahon, Tr. Vol. 1 at 182-183. CRFW
has conducted between 350 and 400 such surveys. Id. at 96. Beeken is a survey
coordinator for CRFW and testified that in the regular course of business, CRFW
retains records related to its survey efforts and routinely shares survey results with
landowners, land management agencies, governmental entities, and university
researchers. Id. at 96-97.
In March 2014, CRFW visited the Benson Ridge Tract to perform preliminary
scouting for potential survey sites, which involved hiking through the area. Beeken,
Tr. Vol. 1 at 111. With Beeken on at least one of the scouting trips was McMahon. Id.
At all relevant times, both Beeken and McMahon, and other CRFW survey volunteers
were certified through specialized training from Sean McAlister of Mad River
Biologists to conduct marbled murrelet surveys in accordance with the PSG Protocol.
Beeken, Tr. Vol. 1 at 100-103; Pls.’ Ex. 26; ECF No. 120 at 22.
The preliminary scouting for potential survey stations involved searching for
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habitat known to be suitable for murrelets, including large trees with large branches
in places that have a “gap in the canopy” where the sky creates a contrasting backdrop
to view the murrelet’s silhouette. Beeken, Tr. Vol. 1 at 107; see also Pls.’ Ex. 11 at 9
(PSG Protocol stating that an “on the ground evaluation of the habitat” “is a critical
first step” to identify “where murrelet surveys should be conducted.”)
Between July and August, CRFW conducted at least thirteen surveys in what
WEST later described as the Benson Ridge South Survey Area. ECF No. 120 at 22.
CRFW surveyors wrote the pertinent details observed during each survey on
“Marbled Murrelet Forest Survey Form” used in the industry for recording detections
of marbled murrelets. McMahon, Tr. Vol. 1 at 192; Pls.’ Ex. 11 at 65-77 (PSG Protocol
providing instructions for data forms and form completion); Pls.’ Ex. 22 (filled out
forms used by CRFW surveyors).
2. 2014 Survey Results
Out of the thirteen surveys, CRFW surveyors recorded three total detections.
The detections included two observations which, according to the PSG Protocol,
indicated marbled murrelet “presence” and one observation indicating marbled
murrelets “occupied” the survey area. ECF No. 120 at 22.
At trial, Defendants challenged whether the detection was reliably “subcanopy.” Strickland, Tr. Vol. 4 at 945.
Specifically, on May 11, 2014, at 6:55 AM, CRFW surveyor, Brittany Osland,
recorded a marbled murrelet audio detection involving multiple “keer calls.”
McMahon, Tr. Vol. 1 at 199-200; Pls.’ Ex. 22 at 9-10. According to the Protocol, this
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would mean that marbled murrelets were “present.” Defendants do not challenge this
On May 24, 2014, McMahon was volunteering with CRFW at Benson Ridge
near what on WEST’s maps is survey station “BR8.” See Appx. Fig. 3 (Trial Ex. 32 at
12). Survey Station BR8 is contained within the Benson Central survey site and is
inside the proposed logging unit. ECF 12. at 22. There, McMahon conducted a survey
and recorded two marbled murrelet detections. McMahon, Tr. Vol 1 at 201-202. The
first detection McMahon described as a visual detection of a “flyover,” entailing a
single bird flying silently at 1.4 canopy height—an “above-canopy” detection. Id. at
202-203. Defendants do not challenge this detection.
The second detection occurred at the same station at 6:16 AM and McMahon
described two birds flying silently at 0.8 canopy height—a “below canopy” detection.
Id. at 203; see also Pls.’ Ex. 22 at 19-20. Defendants challenge the veracity of the
detection. ECF No. 120 at 22.
Accompanying the survey form, McMahon included an audio recording of his
observations during the survey which he made contemporaneously at key moments
describing the weather conditions, canopy closure, and other animal sightings and
sounds. Pls.’ Exs. 23B, 23C. McMahon also made audio recorded notes the moment
he observed the first marbled murrelet, stating on the recording: “Single bird silent,
straight-line flight, 1.4 from the North-Northeast to West-Northwest. Closest
distances fifteen meters.” Tr. Vol. 1 at 208; Pls.’ Ex. 23E.
When McMahon made his second marbled murrelet detection, he also recorded
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his observations: “Two birds silent. North-Northwest. Closest distance 70 meters. 0.8
flying straight West, last seen West-Northwest.” McMahon, Tr. Vol. 1 at 209; Pls.’ Ex.
23K. McMahon filled out the standard survey from recording his observations while
they were fresh in his memory. McMahon, Tr. Vol. 1 at 211.
The Court finds that, in sum, the CRFW survey resulted in two observations
involving above-canopy behavior and one observation involving below canopy
behavior in what is now known as the Benson South Survey Area.
The Court finds that Defendants challenge to the veracity of CRFWs subcanopy detection near BR8 is not based on the surveyor’s honesty, credibility,
expertise, training, or skill. Rather, Defendants dispute the sub-canopy detection on
the basis that the PSG Protocol’s itself provides a “weak” methodology for
determining whether behavior is above- or sub-canopy. Strickland, Tr. Vol. 4 at 945.
Defendants’ argument is not credible. Their own hired surveyors followed the
same observational Protocol concerning identifying above- or sub- canopy height and
were trained by the same industry expert. Defendants’ own experts testified as to the
appropriateness and efficacy of the PSG Protocol, noted above.
Accordingly, the Court finds reliable and credible the evidence and testimony
concerning McMahon’s sub-canopy detection in the Benson Central survey site.
2015 Survey by Western EcoSystems Technology
1. Preliminary Information
After receiving Plaintiffs’ notice letter, Defendants engaged WEST to evaluate
whether, and to what extent, marbled murrelets utilize the Benson Ridge Tract for
Page 44 – AMENDED OPINION AND ORDER
nesting. ECF No. 120 at 16.
Between 2015 and 2016, WEST conducted two years of marbled murrelet
surveys in the Benson Ridge Tract and adjacent suitable habitat within one-quarter
mile outside of the tract, (on lands owned by the State of Oregon consisting of the
Elliott State Forest). Id. WEST’s surveys were conducted using the PSG Protocol. Id.
WEST’s surveyors all received their training and certification in marbled
murrelet surveying under the PSG Protocol from Sean McAllister, Mad River
The portions of the Benson Ridge Tract surveyed by WEST predominantly
consist of trees ranging from approximately 127-138 years old, some of which have
mossy branch platforms that marbled murrelets could attempt to use for nesting.
Roughly one-third of the Tract consists of 37-42 year-old timber and was not surveyed
by WEST after determining it was not suitable for murrelet nesting. This unsuitable
habitat is generally located in the central portion of the Benson Ridge Tract and
separates the suitable habitat in the northern portion of the parcel from the suitable
habitat in the southern portion of the parcel. Appx. Fig. 2 (Defs.’ Ex. 105).
2. Designating the Survey Area
As mentioned, WEST designated a block of contiguous habitat in the southern
portion of the tract as the “Benson South Survey Area,” which is 268.7 acres for
survey purposes is subdivided into three tracts. According to WEST, the Benson
South Survey Area “was defined for our efforts as contiguous blocks of mature and
potentially suitable murrelet habitat[.]” ECF No. 120 at 16.
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The Benson West Survey Site and the Benson Central Survey Site within the
survey area border one another along a ridge where the blue and yellow shading meet,
shown in Exhibit 102 illustrating that there is no gap in forest cover greater than 100
meters along that ridge where the two survey sites meet. ECF No. 120 at 17-18.
WEST hired subcontractors to physically conduct murrelet surveys in
accordance with the PSG’s surveying Protocol. WEST’s subcontractors received their
training and certification in marbled murrelet surveying from Sean McAllister, Mad
River Biologists. Id.
3. 2015 Survey Results
The 2015 WEST survey efforts in the Benson South Survey Area documented
8 total murrelet audio and above-canopy detections but no sub-canopy detections.
ECF No. 120 at 19; Defs.’ Ex. 125. WEST also had 14 detections of marbled murrelets
in 2015 in the suitable habitat in and around the northern portion of the parcel,
though this habitat is separated from the Benson South Survey Area by the
unsuitable habitat in the middle of the property. ECF No. 120 at 19.
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2016 Survey by Western EcoSystems Technology
The 2016 survey by WEST resulted in at least 183 murrelet detections across
the Benson South Survey Area, of which 25 were sub-canopy “occupied” detections
and some of the surveys had multiple observations of sub-canopy flight at the same
station. ECF No. 120 at 20.
1. Benson Southeast Survey Site
WEST documented 76 detections in the Benson Southeast Survey Site. Of
those, 55 detections were at survey station BR23, including 13 instances of subcanopy behavior. At survey station BR23, WEST identified at least one possible
marbled murrelet nest site in the vicinity, based on the observation of a murrelet
landing in a suspected nest tree near the survey station. ECF No. 120 at 20.
2. Benson West Survey Site
WEST documented at least 94 detections in Benson West, including 12
instances of subcanopy behavior in the Benson West Survey Site. WEST documented
13 detections of murrelets in the Benson Central Survey Site in 2016, including one
above-canopy visual detection and 12 audio detections. Id.
3. Northern Portion of Benson Ridge Property
WEST also had 54 detections of marbled murrelets in and around the northern
portion of the property, including 1 sub-canopy detection. Id.; see also Appx. Fig. 3
(Trial Ex. 32).
4. Summary of 2015 and 2016 Surveys
WEST concluded that the results of its 2015 and 2016 survey efforts
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demonstrated that marbled murrelets likely used the Benson West and Benson
Southeast Survey Sites of the Benson South Survey Area for nesting in 2016. ECF
No. 12 at 21. WEST further concluded that the Benson Central Survey Site was likely
not used by murrelets for nesting in 2015 or 2016, as WEST’s surveys did not identify
any subcanopy behavior during those survey years. Id.
However, Defendants stipulate that, according to the PSG Protocol, the entire
Benson South Survey Area would be considered “occupied” by marbled murrelets
because two of Defendants’ three survey sites within a single contiguous survey area
documented “subcanopy” behavior. ECF No. 120 at 22.
VII. Benson Ridge Survey Area, Including the Proposed Project Area, is
Occupied by the Marbled Murrelet
After carefully reviewing all the evidence, and weighing the credibility of the
witnesses, the Court finds that Plaintiffs have proven, by a preponderance of the
evidence, that the Benson South Survey Area is “occupied” by the marbled murrelet.
That is, Plaintiffs have proven, by a preponderance of the evidence, that marbled
murrelets are nesting in the Benson Ridge South Survey Area, which includes the
area proposed for timber harvest.
Under the PSG Protocol, the test for determining whether a potential habitat
is “occupied” is simple: if a surveyor detects marbled murrelets during a survey visit
- - observes
“occupied behavior,” the entire stand is classified as “occupied.” See Pls.’
Ex. 11 at 27; see also Marbled Murrelet v. Pac. Lumber Co., 880 F. Supp. 1343, 1353
(N.D. Cal. 1995) (stating that a single observation of occupied behavior under the
Page 48 – AMENDED OPINION AND ORDER
PSG Protocol is enough to classify a suitable stand of marbled murrelet habitat as
being occupied). Subcanopy behavior is a strong indication of nesting. Golightly, Tr.
Vol. 1 at 268; Falxa, Tr. Vol. 2 at 584-585; Pls.’ Ex. 60 at 27.
First, Plaintiffs have proved, and Defendants do not dispute, that the Benson
Ridge South Survey Area is suitable murrelet habitat. Defs.’ Ex. 115; ECF No. 94 at
20; Golightly, Tr. Vol. 2 at 346, Falxa, Tr. Vol. 2 at 638-640.
Next, the sheer number of murrelet detections in the Benson South Survey
Area, including occupied detections in Benson West, Benson Central, and Benson
Southeast, establish that it is occupied and used for nesting by marbled murrelets.
Golightly, Tr. Vol. 2 at 348-350, 357; Falxa, Tr. Vol 3 at 640, 641-642, 657; see also
Section VII above (listing marbled murrelet survey results).
In this case, there have been just over 200 detections of marbled murrelets at
Benson South Survey Area, throughout the birds' breeding season, over a period of
three consecutive years. Based on the evidence at trial, key findings of which are
listed in this opinion, it is reasonable to conclude that there can be only one
explanation for the marbled murrelets' continued presence in the Benson Ridge South
Survey Area and surrounding land: the marbled murrelet is using the Benson Ridge
South Survey stand for nesting purposes. The Court expressly finds that this includes
the Benson Central site where Defendants propose to harvest, based not only on the
PSG Protocol, but on Defendants’ “presence” observations in Benson Central and
more importantly, the May 14, 2014 subcanopy detection observed by CRFW surveyor
McMahon. The Court notes that under the PSG Protocol, that site is considered
Page 49 – AMENDED OPINION AND ORDER
occupied indefinitely. Ex. 11 at 29; Marbled Murrelet, 880 F. Supp. at 1353 (“even if
only one instance of ‘occupied behavior’ is noted during 300 surveys, a forest will be
considered a probable marbled murrelet nest stand[.]”).
VIII. Proposed Benson Snake Logging Operation will “Harm” and
“Harrass” Murrelets under the Endangered Species Act
Congress enacted the ESA in 1973 to protect and conserve endangered and
threatened species and the ecosystems they depend on. 16 U.S.C. § 1531(b).5 The ESA
was and continues to be “the most comprehensive legislation for the preservation of
endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill
(“TVA”), 437 U.S. 153, 180 (1978); Ctr. for Biological Diversity v. Haaland, 998 F.3d
1061, 1063 (9th Cir. 2021). In the ESA, Congress intended to afford endangered and
threatened species “the highest of priorities,” TVA, 437 U.S. at 174, and aimed “to
halt and reverse the trend toward species extinction, whatever the cost.” Id. at 184.
Section 11 of the ESA authorizes any person to bring a citizen suit “to enjoin
any person . . . who is alleged to be in violation of any provision” of the ESA “or any
regulation issued under the authority thereof[.]” 16 U.S.C. § 1540(g)(1)(A).
Under the ESA, an endangered species is “any species which is in danger of
extinction throughout all or a significant portion of its range[,]” 16, U.S.C. § 1532(6),
and a threatened species is “any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its
range[,]”id. § 1532(20). The ESA directs the Secretaries of the Interior and
Commerce to determine whether a species should be listed as “endangered” or
“threatened” and requires the Secretary of the Interior to publish and maintain a
list of all species that have been designated as such. Id. § 1533.
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Here, Plaintiffs allege that Defendants’ planned Benson Snake logging
operation will violate Section 9 of the ESA by “taking” marbled murrelets that use
the forest in the Benson Ridge Tract for nesting and other reproductive behaviors.
Under Section 9 of the ESA, it is illegal for any person to “take” any endangered
species of fish or wildlife within the United States. Id. § 1538(a)(1)(B). Although
Section 9 does not expressly cover threatened species, the ESA authorizes the
Secretary6 to extend its protections to such species, which the Secretary has done for
wildlife species listed as threatened on or before September 26, 2019, like the marbled
murrelet. Id. §§ 1533(d), 1538(a)(1)(G); 50 C.F.R. §§ 17.21(c), 17.31(a).
The ESA defines “take” as “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.
§ 1532(19). A “take” must be construed in the ‘broadest possible manner’ to provide
maximum protection under the Act. Babbitt v. Sweet Home Chapter of Communities
for a Great Or., 515 U.S. 687, 704 (1995) (quoting S. Rep. No. 93-307, at 7 (1973),
reprinted in 1973 U.S.C.C.A.N. 2989, 2995).
In regulation, the Secretary has defined the terms “harass” and “harm” for
purposes of the ESA’s “take” definition. “Harass” means:
an intentional or negligent act or omission which creates the likelihood
of injury to wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not limited
to, breeding, feeding or sheltering.
50 C.F.R. § 17.3. And “harm” means”
The term “Secretary” means either the Secretary of the Interior or the
Secretary of Commerce. Here, the term refers to the Secretary of the Interior.
Page 51 – AMENDED OPINION AND ORDER
an act which actually kills or injures wildlife. Such act may include
significant habitat modification or degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering.
To prove “harm” to a listed species, a plaintiff must show: (1) actual death or
injury, (2) to identifiable members of a listed species, (3) which must be proximately
caused by the challenged activity and be foreseeable. Sweet Home, 515 U.S. at 691
n.2, 696-97 n.9, 700 n.13; Id. at 708-09 (O’Connor, J., concurring).
The Ninth Circuit has held that, under the regulatory definition of “harm”
upheld by the Supreme Court in Sweet Home, impaired breeding is considered actual
injury and, thus, harm to an animal. Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1067
(9th Cir. 1996); Plaintiffs are, therefore, not required to show that Defendants’
proposed implementation of timber harvest will cause some additional “actual injury”
beyond significant impairment of essential behavioral patterns of marbled murrelets
in the Benson Ridge Parcel, despite Defendants’ arguments to the contrary. ECF No.
94 at 1-2, 15-16; ECF No. 138 at 3.
It is undisputed that the proposed Benson Snake logging operation will
eliminate 49 acres roughly in the center of the Benson South Survey Area, which the
Court found is occupied by the marbled murrelet.
Given the results of surveys by WEST and CRFW, including multiple
subcanopy detections in the contiguous stand and a subcanopy detection in the
proposed logging unit, the Court finds that the 49-acre proposed clearcut will result
in harm by significant impairing, through the destruction and degradation of
Page 52 – AMENDED OPINION AND ORDER
occupied murrelet habitat, their essential behavioral patterns—causing the
murrelets’ ability to nest and engage essential breeding activities to cease there for
100 years or more. Tr. Vol 2 at 346-347 (proposed logging unit is occupied); id. at 385
(any nests in the proposed logging unit will be gone, and murrelets will not nest or
engage in other breeding related activities there after the clearcut).
The proposed logging operation will result in the impairment of other essential
behaviors and in fewer nesting attempts, failure to breed, lower nest abundance,
reduced breeding population, lower nest success, and a lower rate of survival in
adults. Golightly, Tr. Vol. 2 at 384-385:11; id. at 444 (the proposed clearcut will
reduce the number of nests and nesting opportunities and the overall productivity of
marbled murrelets in the Benson Ridge area).
In addition to direct habitat removal, the proposed logging operation will
fragment a continuous stand of occupied forest in the Benson South Survey Area,
which reduces the amount and heterogeneous nature of the habitat, reduces the
forest patch sizes, reduces the amount of interior or core habitat, increases the
amount of forest edge, isolates remaining habitat patches, and creates “sink”
habitats. The ecological consequences of these habitat changes to murrelets can
include what the Court finds to be a significant disruption on population viability and
size, local or regional extinctions, displacement, fewer nesting attempts, failure to
breed, reduced fecundity, reduced nest abundance, lower nest success. Ex. 13 at 33;
Ex. 12 at 30, 41-42 (describing impacts from habitat loss and fragmentation).
Accordingly, the Court finds that Plaintiffs have established by a
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preponderance of the evidence, that the proposed logging project will result in a “take”
of marbled murrelets under the ESA. See Strickland, Tr. Vol. 4 at 954-955 (agreeing
that clearcutting in Benson West and Benson Southeast will result in take of marbled
IX. Permanent Injunction
A plaintiff seeking a permanent injunction must show: (1) that it has suffered
an irreparable injury; (2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.
Cottonwood Envt'l Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088 (9th Cir. 2015)
(quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).
The first prong of the permanent injunction test should be modified to match
the analogous prong in the preliminary injunction test: plaintiffs must show that they
are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also S. Yuba River Citizens
League, 804 F.Supp.2d at 1052 (concluding that where a similar procedural posture
existed, the court would look at “whether the measures are necessary to prevent
“[T]he ESA strips courts of at least some of their equitable discretion in
determining whether injunctive relief is warranted.” Cottonwood, 789 F.3d at 1090.
The ESA removes the latter three factors in the four-factor injunctive relief test from
Page 54 – AMENDED OPINION AND ORDER
our equitable discretion. When considering an injunction under the ESA, courts
presume that remedies at law are inadequate, that the balance of interests weighs in
favor of protecting endangered species, and that the public interest would not be
disserved by an injunction. Id.
The ESA does not, however, restrict a court’s discretion to decide whether a
plaintiff has suffered an irreparable injury. Cottonwood, 789 F.3d at 1090. “[T]here
is no presumption of irreparable injury where there has been a procedural violation
in ESA cases.” Id. at 1091. Plaintiffs must demonstrate that irreparable injury “is
likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in original).
A “possibility” of irreparable harm cannot support an injunction. Id.
In this case, Plaintiffs have demonstrated that they are likely to suffer
irreparable harm for themselves and the marbled murrelet in the absence of
injunctive relief. Id. at 7, 20.
The cause of the irreparable injury to Plaintiffs and the marbled murrelet is
Defendants’ proposed implementation of the Benson Snake logging operation. The
proposed operation will cause a definite and imminent threat of harm to the marbled
murrelet. The harvesting of the 49 acres in the center of a continuous stand of suitable
murrelet habitat will likely cause a violation of the ESA by sufficiently degrading the
birds’ critical nesting habitat to the extent that it will significantly impair the
marbled murrelets’ essential behavioral patterns, including breeding, feeding,
nesting, and sheltering, described above.
Consequently, Plaintiffs have demonstrated that a permanent injunction is
Page 55 – AMENDED OPINION AND ORDER
warranted in this case.
CONCLUSIONS OF LAW
Defendants proposed implementation of the Benson Snake logging operation
will “harm” the marbled murrelet as defined in 50 C.F.R. § 17.3 and thereby cause a
“take” of the species in violation of 16 U.S.C. § 1538(a)(1)(B).
Defendants’ proposed implementation to harvest timber within the Benson
South Survey Area, specifically, the 49 acres identified at trial, will “harass” the
marbled murrelet as defined in 50 C.F.R. § 17.3, and thereby cause a “take” of the
species in violation of 16 U.S.C. § 1538(a)(1)(B).
A permanent injunction prohibiting Defendants’ implementation of its
proposed logging operation is warranted under 16 U.S.C. § 1540.
Plaintiffs are entitled to reasonable attorney fees and costs.
29th day of July 2022.
It is so ORDERED and DATED this ______
United States District Judge
Page 56 – AMENDED OPINION AND ORDER
(jJ Benson Ridge Tract
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Page 57 – AMENDED OPINION AND ORDER
Tota l Age (Years)
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Page 58 – AMENDED OPINION AND ORDER
Bensa, Ridge 2016 Murre/et Surveys FINAL Reporl -
Conndential and Attorney-Client Privileged Work Product
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MAMU Survey Result
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Figure 3. Survey results of 2015 and 201 6 combined survey resu lts. The classific ation of each point was based on the
February 15, 2017
Plaintifls' Exhibit 32, Page 12
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