Cascadia Wildlands v. Scott Timber Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CASCADIA WILDLANDS; No. 22-35764

CENTER FOR BIOLOGICAL

DIVERSITY; AUDUBON SOCIETY D.C. No.

OF PORTLAND, 6:16-cv-01710-

AA

Plaintiffs-Appellees,

v.

OPINION

SCOTT TIMBER CO.; ROSEBURG

RESOURCES CO.; RLC

INDUSTRIES CO.,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted February 8, 2024

Portland, Oregon

Filed June 26, 2024

Before: M. Margaret McKeown, Jay S. Bybee, and Daniel

A. Bress, Circuit Judges.

Opinion by Judge McKeown

2 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

SUMMARY*

Environmental Law

The panel affirmed the district court’s judgment after a

bench trial and entry of a permanent injunction against

private timber companies that sought to harvest timber from

private property in Oregon in a citizen suit brought by

several environmental organizations under the Endangered

Species Act.

The environmental organizations claimed that the

logging project would cause a “take” of marbled murrelets

by clearing acres of trees that these small seabirds used for

breeding purposes. The district court agreed and entered a

permanent injunction prohibiting the implementation of

defendants’ “Benson Snake” logging project.

The panel held that the court had jurisdiction even

though the timber companies characterized plaintiffs’

citizen-suit notice as an invalid “anticipatory” notice. The

panel held that the Supreme Court had effectively overruled

the Ninth Circuit’s prior determination that the citizen-suit

notice requirement of the Endangered Species Act is

jurisdictional. Rather, the notice requirement is a claims-

processing rule and therefore subject to waiver and

forfeiture. Even though the timber companies possibly

forfeited their challenge to the environmental organizations’

notice letter, the panel exercised its discretion to reach the

issue, and held that the notice was sufficient.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 3

The panel held that to prove “harm,” and thus a “take”

under § 9 of the Endangered Species Act, a citizen-suit

plaintiff must prove that the defendant is committing, or will

commit, an act that actually kills or injures wildlife. This act

may include significant habitat modification or degradation

that significantly impairs essential behavioral patterns,

including breeding, feeding, or sheltering. The district court

applied the correct standard for “actual injury” when it

concluded that impaired breeding is considered actual injury

and, thus, harm to an animal. Additionally, the district court

correctly applied this standard to the facts before it and,

based on the record evidence, properly found that the timber

companies’ planned actions would “harm” marbled

murrelets.

COUNSEL

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.

4 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

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.

1

The plaintiff-appellee environmental organizations are Cascadia

Wildlands, the Center for Biological Diversity, and the Audubon Society

of Portland. The defendant-appellant timber companies are Scott Timber

Company, Roseburg Resources Company, and RLC Industries

Company.

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 5

See Wilkins v. United States, 598 U.S. 152, 157 (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 (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

6 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

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

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 7

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

8 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

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).

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 9

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 years before Scott Timber

had begun implementing the Benson Snake project. In

considering Scott Timber’s jurisdictional challenge and in

light of recent Supreme Court precedent on the jurisdictional

versus claims-processing rule divide, we must revisit our

prior jurisdictional holding. We review de novo both this

jurisdictional challenge as well as the adequacy of the notice

of intent to sue under the ESA. See Grand Canyon Tr. v.

U.S. Bureau of Reclamation, 691 F.3d 1008, 1016 (9th Cir.

2012); Conservation Cong. v. Finley, 774 F.3d 611, 617 (9th

Cir. 2014).

A. Revisiting the Notice Requirement as a

Jurisdictional Rule

The parties dispute whether we must adhere to our

longstanding designation of the ESA notice requirement as

jurisdictional. Over three decades ago, we held in Save the

Yaak Committee v. Block that the ESA’s 60-day notice

requirement is jurisdictional, not procedural. 840 F.2d at

721. We later repeated this point without further comment

in the half dozen cases in which we considered whether

citizen plaintiffs fulfilled their notice obligations. See, e.g.,

Klamath-Siskiyou, 797 F.3d at 647; Southwest Center, 143

F.3d at 520; Marbled Murrelet v. Babbitt, 83 F.3d 1068,

1072 (9th Cir. 1996).

But in recent years, the Supreme Court has tried “to

‘bring some discipline’ to the use of the term

10 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

‘jurisdictional.’” Gonzalez v. Thaler, 565 U.S. 134, 141

(2012) (quoting Henderson v. Shinseki, 562 U.S. 428, 435

(2011)). Recognizing that “[j]urisdiction . . . is a word of

many, too many, meanings,” the Court has sought to clarify

the distinction between jurisdictional rules, which limit “the

classes of cases a court may entertain (subject-matter

jurisdiction) and nonjurisdictional claim-processing rules,

which seek to promote the orderly progress of litigation by

requiring that the parties take certain procedural steps at

certain specified times.” Wilkins, 598 U.S. at 156–57

(cleaned up). “The latter category generally includes a range

of ‘threshold requirements that claimants must complete, or

exhaust, before filing a lawsuit.’” Id. at 157 (quoting Reed

Elsevier, 559 U.S. at 166).

The Court has reigned in its “less than meticulous use”

of “jurisdictional” because the distinction between

jurisdictional and claims-processing rules has significant

consequences for litigants. Gonzalez, 565 U.S. at 141

(internal quotation marks and citation omitted). On the one

hand, jurisdictional bars can be raised at any time, and

“courts have a duty to consider them sua sponte.” Wilkins,

598 U.S. at 157. Months or years of work may be wasted if

“eleventh-hour jurisdictional objections prevail post-trial or

on appeal.” Id. at 157–58. Objections to claims-processing

requirements, on the other hand, are subject to forfeiture,

waiver, and estoppel, which “ensure efficiency and fairness

by precluding parties from raising arguments they had

previously disavowed.” Id. at 158.

To determine whether a statutory condition has

jurisdictional consequences, the Court developed a clear

statement rule for us to follow: Congress must “clearly

state[]” that a statutory requirement “shall count as

jurisdictional.” Arbaugh v. Y&H Corp., 546 U.S. 500, 515

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 11

(2006). However, “[t]his clear statement rule does not

require that Congress incant magic words in order to speak

clearly, and so the absence of the word ‘jurisdiction’ is not

necessarily dispositive.” Organic Cannabis Found., LLC v.

Comm’r of Internal Revenue, 962 F.3d 1082, 1093 (9th Cir.

2020) (internal quotation marks and citation omitted).

Rather, we must consider the “condition’s text, context, and

relevant historical treatment” to discern whether Congress

imbued the provision with jurisdictional consequences.

Reed Elsevier, 559 U.S. at 166 (citations omitted).

Applying the Court’s test to the ESA notice requirement

in Section 1540(g)(2)(A)(i), we conclude that our prior

holding in Save the Yaak is “clearly irreconcilable” with the

Court’s recent case law addressing jurisdictional and claims-

processing rules. Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir. 2003) (en banc). As a three-judge panel, we are, of

course, bound by circuit precedent. See id. at 899. However,

we depart from this precedent when “our prior decision [has]

been undercut by higher authority to such an extent that it

has been effectively overruled.” Id. If the Supreme Court

has “undercut the theory or reasoning underlying the prior

circuit precedent in such a way that the cases are clearly

irreconcilable,” we must abandon our prior holding and

follow the dictates of the Court. Id. at 900.2

2

We note that our court, at the three-judge panel stage, recently declined

the opportunity to revisit a prior holding that the False Claims Act’s first-

to-file rule is jurisdictional. See Stein v. Kaiser Found. Health Plan, Inc.,

No. 22-15862, 2024 WL 107099 at *1 (9th Cir. Jan. 10, 2024), reh’g en

banc granted, vacated, 2024 WL 2042927 (May 8, 2024). But the

posture of this case is a far cry from the situation at issue in Stein. The

first-to-file rule at issue there was reaffirmed as jurisdictional by an en

banc court during the Supreme Court’s overhaul of its jurisdictional

12 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

Mindful of the Court’s focus on the clear statement rule,

we begin with the text of the ESA. Section 1540(g)(2)(A)(i)

states, “No action may be commenced . . . prior to sixty days

after written notice of the violation has been given to the

Secretary, and to any alleged violator of any such provision

or regulation . . . .” The provision does not reference

“jurisdiction” in any manner. And even though the notice

requirement “is cast in mandatory language,” the Supreme

Court has explicitly “rejected the notion that all mandatory

prescriptions, however emphatic, are properly typed

jurisdictional.” Henderson, 562 U.S. at 439 (cleaned up).

Thus, the language of Section 1540(g)(2)(A)(i) “provides no

clear indication that Congress wanted that provision to be

treated as having jurisdictional attributes.” Id.

The remainder of Section 1540 bolsters a

nonjurisdictional reading of the notice requirement.

Although the term “jurisdiction” appears in two subsections

of Section 1540—Sections 1540(c) and 1540(g)(1)—those

subsections are not tied to the notice requirement in any way.

Rather, Section 1540(c)—clearly captioned as “District

Court Jurisdiction”—sets out the district courts’ subject-

matter jurisdiction over ESA suits: “The several district

precedents. See U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 792

F.3d 1121, 1130 (9th Cir. 2015) (en banc). Thus, the panel in Stein

concluded that Hartpence did not meet the “clearly irreconcilable”

standard under Miller. 2024 WL 107099 at *1. Notably, no en banc

court has held that the ESA notice requirement is jurisdictional, and the

last case of this court to truly consider the jurisdictional aspects of the

notice issue was Save the Yaak in 1988, long before the Court’s overhaul.

840 F.2d at 721. Given the decades that have passed since Save the

Yaak—and the now well-established and clear guidance from the

Supreme Court that has been formulated in the interim—we conclude

that, as a three-judge panel, we may recognize the infirmity of the

jurisdictional holding in Save the Yaak.

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 13

courts of the United States . . . shall have jurisdiction over

any actions arising under this chapter.” See also Endangered

Species Act of 1973, Pub. L. No. 93-205, § 11(c), 87 Stat.

884, 898 (1973). The statute goes on, in Section 1540(g)(1),

to address citizen suits, specifically providing that “[t]he

district courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties, to

enforce any such provision or regulation, or to order the

Secretary to perform such act or duty . . . .” 16 U.S.C.

§ 1540(g)(1).

Notably, the notice requirement in Section

1540(g)(2)(A)(i) “appears in a separate provision” from the

subsections that grant jurisdiction over ESA suits to the

district courts, Sections 1540(c) and (g)(1). Arbaugh, 546

U.S. at 515. Congress clearly knows how to “delineat[e] the

adjudicatory authority of courts,” and it did so in Sections

1540(c) and 1540(g)(1). Fort Bend County v. Davis, 139 S.

Ct. 1843, 1851 (2019). “The contrast between the text of

[Section 1540(g)(2)(A)(i)] and the unambiguous

jurisdictional terms in related provisions shows that

Congress would have spoken in clearer terms if it intended

for [the notice provision] to have similar jurisdictional

force.” Santos-Zacaria v. Garland, 598 U.S. 411, 419

(2023) (cleaned up). Nothing in Section 1540 indicates that

jurisdiction under the ESA is triggered only once the notice

requirement is fulfilled. We must read Section 1540 as a

whole and give credence to Congress’s careful insertion of

the term “jurisdiction” precisely where it meant for a

provision to have jurisdictional effect, and not simply to

provide notice of suit.

Finally, the historical treatment of the ESA notice

requirement does not weigh in favor of interpreting the

condition as jurisdictional. Although we have consistently

14 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

described the notice requirement as jurisdictional for over

thirty years, our original holding in Save the Yaak rests on

an extremely thin foundation. In Save the Yaak, we did not

analyze the language of the ESA to conclude that the notice

provision is jurisdictional. See 840 F.2d at 721. Rather, our

holding rested entirely on our decision in Hallstrom v.

Tillamook County, 831 F.2d 889 (9th Cir. 1987), amended

by 844 F.2d 598, which had recently concluded that the

similar citizen-suit notice requirement in the Resources

Conservation and Recovery Act (“RCRA”) was

jurisdictional. See Save the Yaak, 840 F.2d at 721.

Not long after our decision in Hallstrom, the Supreme

Court severely undercut this analysis. The Court refused to

adopt our construction of the RCRA notice requirement as

jurisdictional, instead holding that it was a “mandatory

condition[] precedent to commencing suit . . . .” Hallstrom

v. Tillamook County, 493 U.S. 20, 31 (1989). And the Court

went on to explain that in light of its “literal interpretation of

the statutory requirement,” it “need not determine whether

[the RCRA provision] is jurisdictional in the strict sense of

the term.” Id.

The Court’s flagging of the jurisdiction question was a

prescient warning when some years later it stated that courts

should “curtail . . . drive-by jurisdictional rulings, which too

easily can miss the critical differences between true

jurisdictional conditions and nonjurisdictional limitations on

causes of action.” Reed Elsevier, 559 U.S. at 161 (cleaned

up). In Save the Yaak, the court quickly disposed of the ESA

claim without much analysis, focusing instead on alternative

claims under the National Environmental Policy Act. 840

F.2d at 717–21. The “characterization [of the ESA notice

requirement as jurisdictional] was not central to the case, and

thus did not require close analysis.” Reed Elsevier, 559 U.S.

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 15

at 161. The absence of any textual or contextual analysis

vis-a-vis the ESA bears out the description of the Save the

Yaak holding as a “drive-by jurisdictional ruling.”

It bears noting that our sister circuits have not “uniformly

adopted a jurisdictional reading” of the ESA notice

provision. Organic Cannabis, 962 F.3d at 1095. Although

the Third Circuit has suggested that the provision is

jurisdictional, Hawksbill Sea Turtle v. FEMA, 126 F.3d 461,

471 (3rd Cir. 1997), the Fifth Circuit has held that it is a

mandatory procedural rule that can be waived, Sierra Club

v. Yeutter, 926 F.2d 429, 437 (5th Cir. 1991). No circuit has

addressed this question post-Arbaugh. Therefore, with no

“long line of Supreme Court decisions left undisturbed by

Congress [that] attached a jurisdictional label to the

prescription” nor Congress’s confirmation or clear statement

of a jurisdictional understanding, nothing supports the view

that Congress intended for us to treat the ESA notice

requirement as jurisdictional. Organic Cannabis, 962 F.3d

at 1095 (quoting Fort Bend County, 139 S. Ct. at 1849).

Ultimately, Section 1540(g)(2)(A)(i) imposes a

precondition to filing an ESA citizen suit “that is not clearly

labeled jurisdictional, is not located in a jurisdiction-

granting provision,” and has not been uniformly treated as

jurisdictional. Reed Elsevier, 559 U.S. at 166. Thus, the

Supreme Court’s Arbaugh line of cases has “effectively

overruled” our conclusion in Save the Yaak that the ESA

notice requirement is jurisdictional. Miller, 335 F.3d at 899.

We therefore hold that the ESA notice requirement in

Section 1540(g)(2)(A)(i) is a mandatory claims-processing

rule, not a jurisdictional predicate. See Hallstrom, 493 U.S.

at 31 (holding that RCRA’s analogous notice requirement

was a “mandatory condition[] precedent to commencing

suit”).

16 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

B. Forfeiture

Not so long ago, the Supreme Court instructed that

mandatory claims-processing rules are “unalterable if

properly raised by an opposing party.” Nutraceutical Corp.

v. Lambert, 139 S. Ct. 710, 714 (2019) (internal quotation

marks and citation omitted). However, challenges to a

party’s adherence to these rules “can be waived or forfeited

by an opposing party” if not raised at the proper time. Id. In

general, we have held that an initial appeal is the proper time

to raise an issue; otherwise, “[w]e need not and do not

consider a new contention that could have been but was not

raised on the prior appeal.” Munoz v. Imperial County, 667

F.2d 811, 817 (9th Cir. 1982).

Here, Scott Timber failed to challenge the adequacy of

the notice letter in its prior appeal in this court. When

Cascadia Wildlands sought a preliminary injunction, Scott

Timber opposed on the grounds that Cascadia Wildlands did

not provide proper notice under the ESA. In the order

granting the preliminary injunction, the district court

explicitly considered and rejected Scott Timber’s argument,

teeing up the issue and making it ripe for review. But when

Scott Timber pursued an interlocutory appeal of the

preliminary injunction, it did not contest the district court’s

ruling on this issue, and we did not consider the sufficiency

of the notice. See Cascadia Wildlands, 715 F. App’x at 623–

25. Rather, Scott Timber chose to raise the adequacy of the

notice again in the district court only after the interlocutory

appeal. Having failed once again to prevail on the notice

issue and the merits, Scott Timber now asks us to consider

the notice issue anew.

Usually, the proper time to challenge the adequacy of the

notice letter was on appeal of the order that first addressed

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 17

the sufficiency of the notice letter. See Jimenez v. Franklin,

680 F.3d 1096, 1099–1100 (9th Cir. 2012). Because Scott

Timber did not do so when the issue was ripe—and

potentially could have been dispositive to this case—it could

be argued that Scott Timber forfeited its notice argument.

However, “we have discretion to reach an otherwise-

forfeited issue in appropriate circumstances, especially

when . . . the issue presented is purely one of law and either

does not depend on the factual record developed below, or

the pertinent record has been fully developed.” Organic

Cannabis, 962 F.3d at 1092 n.6 (cleaned up). The adequacy

of a notice of intent to sue is a legal issue, and even though

its resolution may rest on facts in the record, the record here

is fully developed as a consequence of the trial and the

district court addressed the adequacy of the notice on the

merits. See Klamath-Siskiyou, 797 F.3d at 650–51. We also

recognize that Scott Timber may have proceeded with the

understanding that it could raise its jurisdictional argument

at any time under our prior precedent. Given these

circumstances, we will therefore exercise our discretion to

consider whether Cascadia Wildlands’s notice letter was

adequate.

C. Adequacy of the Notice of Intent to Sue

We have previously stated that under the ESA, “[t]o

provide proper notice of an alleged violation, a would-be

plaintiff must ‘at a minimum provide sufficient information

so that the notified parties could identify and attempt to abate

the violation.’” Klamath-Siskiyou, 797 F.3d at 651 (quoting

Southwest Center, 143 F.3d at 522) (cleaned up). To be

sufficient, the notice does not have “to list every specific

aspect or detail of every alleged violation.” Cmty. Ass’n for

Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d

18 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

943, 951 (9th Cir. 2002) (citation omitted). Rather, our

analysis looks at the “overall sufficiency” of the notice by

“examin[ing] both the notice itself and the behavior of its

recipients to determine whether they understood or

reasonably should have understood the alleged violations.”

Klamath-Siskiyou, 797 F.3d at 651 (citations omitted).

The unique circumstances of this case confirm that

Cascadia Wildlands’s June 2014 notice letter was sufficient

for its suit against Scott Timber. The notice letter clearly

“provide[d] sufficient information so that the notified parties

could identify and attempt to abate” the prospective violation

of Section 9 of the ESA. Klamath-Siskiyou, 797 F.3d at 651

(quoting Southwest Center, 143 F.3d at 522) (cleaned up).

As an initial matter, Scott Timber has long been involved

in the litigation over timber harvesting in the Elliott State

Forest. Before it received the notice letter and purchased the

property, Scott Timber had intervened in Cascadia

Wildlands’s earlier suit against Oregon officials and was

therefore aware of the Section 9 injunction that prohibited

the State from logging in occupied marbled murrelet habitat

in the Elliott State Forest, including the Benson Tract. See

Kitzhaber, 2012 WL 5914255, at *2.

Cascadia Wildlands’s 2014 notice letter reminded Scott

Timber of this prior litigation, detailed the obligations of

Section 9 and the impacts of logging on murrelets, and

alleged that the Benson Tract was occupied marbled

murrelet habitat in which logging would cause “take” of

murrelets. Even though the Benson Snake project was not

specifically mentioned in the letter, that project is within the

Benson Tract, which the letter did discuss. And the

allegations in the complaint that Cascadia Wildlands

eventually filed mirrored those in the letter, reiterating that

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 19

logging in occupied marbled murrelet habitat in the Benson

Tract would violate Section 9. See Bosma Dairy, 305 F.3d

at 950–51 (stating that a notice is adequate so long as the

claims in a citizen-suit’s complaint are “of the same type” as

the alleged violations detailed in the notice (internal

quotation marks and citation omitted)). Thus, Scott Timber

was on notice that any logging operation on the Benson Tract

that was “reasonably likely to occur”—even if not

specifically planned in 2014 when the notice was sent—

would be alleged to be an ESA violation.

Additionally, a review of Scott Timber’s behavior after

it received the notice letter underscores that it “understood

the alleged violations.” Klamath-Siskiyou, 797 F.3d at 651

(citations omitted). While disclaiming any “concrete” or

“imminent” plans to conduct a timber harvest, Scott Timber

also admitted that it was interested in purchasing the Benson

Tract for logging because of “the compatibility of Elliott

State Forest timber with [Roseburg Forest Products’s] high

grade plywood manufacturing facilities.” Further, Scott

Timber responded to the notice by hiring marbled murrelet

surveyors for the Benson Tract “to investigate [Cascadia

Wildlands’s] allegations and . . . to help inform . . . the

company’s strategy and preparation for anticipated

litigation.” Scott Timber’s argument that the notice was

“speculative and vague” is unfounded. Scott Timber

purchased a specific parcel for timber and then took actions

to determine whether the parcel was occupied by murrelets

that would be harmed by planned logging operations,

20 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

following litigation—of which it was aware—involving this

same issue.3

Given these circumstances, we conclude that the

“anticipatory” aspect of Cascadia Wildlands’s notice is of no

import here. Neither our court nor any other circuit has

directly addressed whether an anticipatory notice satisfies

the ESA notice requirements under 16 U.S.C.

§ 1540(g)(2)(A). But our precedent clearly supports ESA

citizen-suits for prospective violations, suggesting that

anticipatory notices may be sufficient in specific situations.

See Marbled Murrelet I, 83 F.3d at 1064 (holding that “an

imminent threat of future harm is sufficient for the issuance

of an injunction under the ESA”); see also Forest

Conservation Council v. Rosboro Lumber Co., 50 F.3d 781,

785 (9th Cir. 1995) (“[T]he injunctive relief authorized by

the citizen suit provision . . . is by its very nature directed at

future actions.”). Further, we—along with the First

Circuit—have allowed for Clean Water Act and ESA

citizen-suit notices that preceded violations so long as the

notices were otherwise sufficient. See Nat. Res. Def.

Council v. Sw. Marine, Inc., 236 F.3d 985, 997 (9th Cir.

2000); Water Keeper All. v. U.S. Dep’t of Def., 271 F.3d 21,

30 (1st Cir. 2001).

We purposely adopt no bright-line rule on anticipatory

notices. However, the history of the Benson Tract, the

alignment of the violations detailed in the notice letter and

3

Scott Timber’s attack on the notice based on the fact that it did not

receive the deed for the Benson Tract until June 4, 2014, a day after it

received the notice letter, unnecessarily elevates form over substance.

Scott Timber already knew that it was the winning bidder and would take

possession of the Tract when it received the notice on June 3, and Scott

Timber’s actions after receipt of the notice show that it took the

allegations seriously as the new owner of the Tract.

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 21

the claims alleged in the complaint, and Scott Timber’s

response to the notice all confirm that the notice letter here

was adequate. Thus, this citizen suit was properly

commenced under 16 U.S.C. § 1540(g)(2)(A), and we

proceed to the merits.

II. “Take” Under the ESA

Section 9 of the ESA makes it unlawful for anyone to

“take” an endangered or threatened species. 16 U.S.C.

§ 1538(a)(1)(B). 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.” Id.

§ 1532(19). To prove “harm” under the ESA, citizen-suit

plaintiffs must prove that the defendant is committing, or

will commit, “an act which actually kills or injures wildlife.”

50 C.F.R. § 17.3. This “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.” Id. In

other words, a citizen-suit plaintiff must prove that the injury

to identifiable members of the protected species is of a type

covered by the ESA and that the relationship between the

challenged activity and the injury meet the standards of

proximate causation. See Babbitt v. Sweet Home Chapter of

Cmtys. for a Great Or., 515 U.S. 687, 708–09, 712 (1995)

(O’Connor, J., concurring). When analyzing a district

court’s “take” determination, we review the court’s findings

of fact for clear error and review de novo its conclusions of

law. See Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568,

1571 (9th Cir. 1993).

A. Actual Injury

The Secretary of the Interior’s “harm” regulation

provides that a “significant habitat modification or

22 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

degradation” which “significantly impair[s] . . . breeding”

qualifies as an act that “actually kills or injures wildlife.” 50

C.F.R. § 17.3. Not only has the Supreme Court upheld this

regulation, but we have also explicitly held that “a habitat

modification which significantly impairs the breeding and

sheltering of a protected species amounts to ‘harm’ under the

ESA.” Marbled Murrelet, 83 F.3d at 1067 (referring to

Sweet Home, 515 U.S. 687).

The district court explicitly applied this standard for

“actual injury.” The court’s articulation of the standard—

that “impaired breeding is considered actual injury and, thus,

harm to an animal”—aligns with our holding in Marbled

Murrelet. 83 F.3d at 1067. Additionally, the district court

correctly applied this standard to the facts before it, finding

that the proposed logging project would eliminate 49 acres

of old-growth forest occupied by marbled murrelets, thereby

qualifying as a “significant habitat modification or

degradation.” 50 C.F.R. § 17.3. The court went on to find

that Scott Timber’s proposed clearcut would “significantly

impair[]” the breeding of murrelets by preventing them from

returning to that portion of the Benson Tract to nest and

engage in other breeding activities for the next century. Id.

These findings lead to the conclusion that Scott Timber’s

“habitat modification would actually injure [murrelets] by

significantly impairing their essential behavioral patterns,

including breeding . . . .” Rosboro Lumber, 50 F.3d at 788.

Nothing required the district court to determine, in

evaluating actual injury, that the Benson Snake area was

“essential” for the murrelets’ survival. We have never

imposed a heightened “essential” requirement for actual

injury under the ESA, and Scott Timber does not persuade

us why we should switch course now. Although Scott

Timber seeks to insert this descriptor in order to tip the scales

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 23

in its favor, an “essential” habitat requirement would upend

our long-held approach. It would rewrite the ESA and its

regulations that already require that a habitat be used by

members of a protected species, that the habitat be

significantly modified or degraded, and that the modification

or degradation significantly impair the species’ essential

behavioral patterns. See 50 C.F.R. § 17.3. We decline to

rewrite the statute to narrow this already circumscribed

approach.

The record amply supports the district court’s factual

findings underlying its actual injury determination. The

district court’s reliance on the PSG Protocol to find that the

Benson Tract was occupied by murrelets—and should be

considered occupied indefinitely—was not clearly

erroneous. The court devoted several pages of its opinion to

explaining why it found the PSG Protocol to be an

“effective, appropriate, and reliable method” for surveying

marbled murrelets. It pointed to the extensive use and

acceptance of the Protocol by scientists, private industry, and

governmental entities, relied on the testimony of witnesses

and experts during the trial, and noted our prior approval of

federal agencies’ reliance on the Protocol. See, e.g., Nw.

Forest Res. Council v. Pilchuck Audubon Soc’y, 97 F.3d

1161, 1167–70 (9th Cir. 1996). Also, instead of sweeping

aside Scott Timber’s critiques of the Protocol, the district

court carefully considered its arguments, including the

testimony of its expert, Dr. Strickland, but rejected them

given the robust scientific and legal basis for the Protocol’s

methodology.

As for the district court’s finding that removing 49 acres

of habitat would imminently injure murrelets, the record

incorporates numerous pieces of evidence from which the

court could infer that murrelets would return to the Benson

24 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

Tract to nest and go nowhere else. Apart from the Protocol’s

dictate that the Benson Tract should be treated as occupied

indefinitely, Cascadia Wildlands’s expert, Dr. Golightly,

testified that murrelets have high nest-site fidelity, even to

the scale of the nest tree, indicating that murrelets that nested

in the Benson Tract would return. Dr. Golightly and

Cascadia Wildlands’s other expert, Dr. Falxa, buttressed the

conclusion that murrelets were “not just going to go

somewhere else” if their nesting habitat was removed.

These findings demonstrate that the chain of events that

would result in injury to the murrelets is direct, not

attenuated. In contrast, in American Bald Eagle v. Bhatti,

the First Circuit held that the plaintiffs failed to prove actual

injury to bald eagles because they did not provide evidence

that eagles had actually ingested lead slugs left in deer

carrion after a deer hunt. 9 F.3d 163, 166 (1st Cir. 1993).

But there is no such supposition or attenuation here. The

district court found that Scott Timber’s timber harvest would

directly remove and fragment occupied murrelet habitat used

for breeding. The district court thus applied the correct

injury standard and committed no factual error in holding

that the timber harvest would cause actual injury and

therefore “harm” under the ESA.

B. Proximate Causation

The question remains whether Cascadia Wildlands, in

endeavoring to prove “harm” under the ESA, has provided

sufficient evidence that the challenged activity would

“proximately,” and foreseeably, cause “actual, as opposed to

hypothetical or speculative, death or injury to identifiable

protected animals.” Sweet Home, 515 U.S. at 708–09, 712

(O’Connor, J., concurring); see also id. at 691 n.2, 700 n.13

(majority opinion).

CASCADIA WILDLANDS V. SCOTT TIMBER CO. 25

The evidence more than supports the district court’s

conclusion that Cascadia Wildlands had met its burden in

demonstrating that proposed timber harvest would

specifically cause injury to the marbled murrelets on the

Benson Tract. The court laid out its causation analysis: the

Benson Tract is occupied and used for nesting by marbled

murrelets, the logging operation would eliminate 49 acres of

this occupied habitat, and the clearcut would remove nests

and prevent returning murrelets from nesting or engaging in

other breeding-related activities there. The court also

explained how the timber harvest would directly fragment a

continuous stand of occupied forest and, using scientific

studies, how this fragmentation would foreseeably and

negatively impact the murrelets’ breeding behaviors.

Even though the district court relied on expert opinions

that referred to correlative evidence, the record demonstrates

that the experts here specifically explained how and why

regional-level studies applied to the Benson Tract. Unlike

the cases cited by Scott Timber, in which the plaintiffs solely

relied on general scientific studies to establish threats to

threatened and endangered species, the district court did not

rely solely on Cascadia Wildlands’s proffered regional-level

evidence to establish causation. See Bhatti, 9 F.3d at 166;

Man Against Xtinction v. Comm’r of Me. Dep’t of Marine

Res., 478 F. Supp. 3d 67, 73 (D. Me. 2020). Rather, the court

relied on expert opinions that provided extensive evidence

demonstrating the direct threat that Scott Timber’s proposed

timber harvest posed to marbled murrelets that live on and

use the Benson Tract.

The record also supports the district court’s findings on

negative “edge effects” that would result from fragmentation

of the forest. Contrary to Scott Timber’s claim that the

district court made no findings on edge effects or predation,

26 CASCADIA WILDLANDS V. SCOTT TIMBER CO.

the district court specifically listed examples of edge effects

and found that fragmentation would lead to reduced

fecundity and lower nest success. Additionally, experts for

both Cascadia Wildlands and Scott Timber discussed studies

on edge effects and predation and their application to the

Benson Tract. Although Cascadia Wildlands’s experts

acknowledged that they had not specifically studied or

modeled edge effects at the Benson Tract, their testimony

supports the district court’s inferences that these edge effects

would occur because of the Benson Snake project.

We hold that the district court did not err in concluding

that Cascadia Wildlands established proximate causation

under the ESA.4

CONCLUSION

We uphold the district court’s determination that

Cascadia Wildlands’s notice letter was adequate for the

commencement of this citizen suit and that Scott Timber’s

proposed timber harvest on the Benson Tract would result in

“take” of marbled murrelets in violation of the ESA. The

permanent injunction stands.

AFFIRMED.

4

We need not consider whether the district court correctly held that the

evidence was sufficient to support the finding that the proposed timber

harvest would “harass” murrelets. See 50 C.F.R. § 17.3. Because we do

not disturb the factual findings underlying the district court’s “harm”

determination, which alone is sufficient for the issuance of injunction,

we do not reach the court’s “harassment” conclusion. See Marbled

Murrelet I, 83 F.3d at 1068 n.5.