Cascadia Wildlands v. Scott Timber Co.

105 F.4th 1144

CASCADIA WILDLANDS; Center for Biological Diversity;Audubon Society of Portland, Plaintiffs-Appellees, v. SCOTT TIMBER CO.; Roseburg Resources Co.;RLC Industries Co., Defendants-Appellants.

No. 22-35764

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 8, 2024 Portland, Oregon

Filed June 26, 2024

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding, D.C. No. 6:16-cv-01710-AA

Daniel R. Kruse (argued), Kruse & Saint Marie LLC, Eugene, Oregon; Nicholas S. Cady, Cascadia Wildlands Project, Eugene, Oregon; Daniel C. Snyder, Public Justice, Washington, D.C.; Brian Segee, Center for Biological Diversity, Ojai, California; for Plaintiffs-Appellees.

Dominic M. Carollo (argued), Carollo Law Group, Roseburg, Oregon, for Defendants-Appellants.

David O. Bechtold, Northwest Resource Law PLLC, Portland, Oregon; Greg A. Hibbard, Northwest Resource Law, Seattle, Washington; for Amicus Curiae Oregon Forest Industries Council.

Before: M. Margaret McKeown, Jay S. Bybee, and Daniel A. Bress, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

Marbled murrelets—a species of threatened birds that forage at sea and nest in forests—are no strangers to the federal courts, having been the subject of various lawsuits for more than twenty-five years. This appeal involves yet another Endangered Species Act ("ESA") challenge to a proposed logging project of property inhabited by marbled murrelets. Several environmental organizations (collectively "Cascadia Wildlands") brought a citizen suit against private timber companies (collectively "Scott Timber") that sought to harvest timber from private property in Oregon.¹ Cascadia Wildlands claimed that the logging project would cause a "take" in violation of the ESA by clearing acres of trees that marbled murrelets used for breeding purposes. See 16 U.S.C. § 1538(a)(1)(B). The district court agreed and entered a permanent injunction.

At the outset, we must determine whether we have jurisdiction because Scott Timber characterizes Cascadia Wildlands's citizen-suit notice as an invalid "anticipatory" notice. This issue is slightly tricky given our long-standing precedent that the ESA notice requirement is a jurisdictional rule. See Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988). However, in recent years, the Supreme Court has clarified the distinction between jurisdictional rules and non-jurisdictional claims-processing requirements. See Wilkins v. United States, 598 U.S. 152, 157, 143 S.Ct. 870, 215 L.Ed.2d 116 (2023) (emphasizing that claims-processing rules, which generally include "requirements that claimants must complete, or exhaust, before filing a lawsuit," are not jurisdictional in nature (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010))). In view of recent intervening authority, we hold that the Supreme Court has effectively overruled our prior determination that the citizen-suit notice requirement of the ESA is jurisdictional. Rather, this notice requirement is a claims-processing rule and therefore subject to waiver and forfeiture. Here, even though Scott Timber may have forfeited its challenge to Cascadia Wildlands's notice letter, we exercise our discretion to reach the issue and hold that the notice was sufficient. Additionally, the district court applied the correct legal standards for "take" under the ESA and properly based its factual findings that Scott Timber's planned actions would "harm" murrelets on the record evidence. See 50 C.F.R. § 17.3. We affirm.

BACKGROUND

Marbled murrelets are small seabirds that spend most of their life feeding on fish in the ocean but fly inland to nest in the mature and old growth coniferous forests of the Pacific Northwest. Murrelets do not build nests but lay a single egg on thick, flat tree branches with natural depressions and moss. Usually, only very large trees within old growth forests contain suitable platforms for murrelet nesting. These secretive nesting habits in tall trees combined with camouflaged feather patterns and high velocity flight make murrelets notoriously difficult to detect. In fact, the Pacific Seabird Group ("PSG")—"a society of scientists, seabird researchers, land managers and other seabird enthusiasts"—had to develop a Protocol to provide surveyors with standardized techniques to detect marbled murrelets in forests.

Murrelets' reliance on old growth forests, however, has hindered the long-term survival of the species. Commercial logging has decimated the old-growth forests that once blanketed the Pacific Northwest and destroyed murrelet nesting sites. The loss of nesting habitat resulted in such a significant decline in the murrelet population that the U.S. Fish and Wildlife Service listed the marbled murrelet in California, Oregon, and Washington as a threatened species under the ESA in 1992.

The ensuing tension between timber harvesting and the protection of marbled murrelets has spawned numerous ESA suits against logging operations over the past three decades. See, e.g., Marbled Murrelet v. Babbitt (Marbled Murrelet I), 83 F.3d 1060 (9th Cir. 1996). The history of the property at issue in this appeal, the Benson Ridge Tract ("Benson Tract"), exemplifies this ongoing saga. The Benson Tract is a 355-acre forested parcel that was once part of the Elliott State Forest, which is owned and managed by the State of Oregon. In 2012, Cascadia Wildlands sued the Oregon Governor and other officials to enjoin state-authorized logging activities and forestry management decisions on state-owned lands, including the Elliott State Forest, that allegedly caused the "take" of marbled murrelets in violation of the ESA. Several private timber companies, including Scott Timber, intervened as defendants. The federal district court in Oregon found that Cascadia Wildlands was likely to succeed on the merits of its ESA claim and issued a preliminary injunction prohibiting logging in any occupied murrelet habitat in the Elliott State Forest. See Cascadia Wildlands v. Kitzhaber, No. 3:12-cv-00961, 2012 WL 5914255, at *2 (D. Or. Nov. 19, 2012). After the preliminary injunction was entered, the State canceled all its pending and proposed logging operations in occupied murrelet sites in the forests at issue and the parties settled. The State then announced a plan in January 2014 to auction off several parcels of state-owned land, including the Benson Tract. The State closed the auction in April 2014, and Scott Timber was the winning bidder for the Benson Tract.

But the sale of the Benson Tract did not end the dispute. As the State's appraisal letter had detailed, the Benson Tract had not been surveyed for murrelets but was likely occupied by them. In May 2014, surveyors with the Coastal Range Forest Watch recorded three detections of murrelets on the Benson Tract. In the wake of these detections, Cascadia Wildlands sent an ESA citizen-suit notice letter to Scott Timber on June 3, 2014. The letter stated that the Benson Tract was likely occupied murrelet habitat, that logging there would violate Section 9 of the ESA, and that the groups would pursue an injunction to prevent Scott Timber from logging the Tract.

A day later, Scott Timber acquired the deed to the Benson Tract. Following receipt of the notice letter, Scott Timber hired Western EcoSystems Technology, which surveyed the Benson Tract for marbled murrelets throughout 2015 and 2016. After conducting its surveys, Scott Timber proceeded with its "Benson Snake" logging project, a plan to clear-cut 49 acres of timber located in the middle of the Benson Tract. On August 13, 2016, Scott Timber notified the Oregon Department of Forestry of its planned Benson Snake project.

Just two weeks after Scott Timber's notice to the Department of Forestry, Cascadia Wildlands sued Scott Timber in federal court in Oregon. Cascadia Wildlands asserted a single claim for violation of Section 9 of the ESA and moved for a preliminary injunction. The district court granted the preliminary injunction, but on appeal, we reversed. See Cascadia Wildlands v. Scott Timber Co., 715 F. App'x 621, 624-25 (9th Cir. 2017). We held that the district court erred in its irreparable harm analysis because it did not specifically find that marbled murrelets likely inhabited the Benson Tract and would likely be harmed by the project. Id.

On remand, the parties agreed to forego further hearings on the preliminary injunction in favor of an expedited trial. After a five-day bench trial in May 2019, the district court held that the Benson Snake project would "harm" and "harass" marbled murrelets as defined in 50 C.F.R. § 17.3, thereby causing a "take" in violation of 16 U.S.C. § 1538(a)(1)(B). The court also entered a permanent injunction prohibiting the implementation of the Benson Snake project.

ANALYSIS

I. The ESA Notice Requirement

Before reaching the merits of the ESA claim, we first address whether Cascadia Wildlands complied with the ESA's notice requirement. To bring a citizen suit for a violation of the ESA, a private citizen must give "written notice of the alleged violation or violations upon which the suit is based at least sixty days before suit is filed." Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 647 (9th Cir. 2015) (citing 16 U.S.C. § 1540(g)(2)(A)(i)). "A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA." Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation (Southwest Center), 143 F.3d 515, 520 (9th Cir. 1998).

We have long held that the ESA notice requirement is jurisdictional. See Save the Yaak, 840 F.2d at 721. Scott Timber invokes this precedent to argue that we lack jurisdiction over this suit because Cascadia Wildlands's notice letter was an invalid "anticipatory" notice. In other words, the 2014 notice letter was insufficient because Cascadia Wildlands sent it two...