Opposition Brief — Pacific Lumber Co. v. Marbled Murrelet

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SO RAE G LEDIDEDE A DAOC ABE LEE

No. 99-598

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In The :

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Supreme Court of the UniltedicStates °°" |

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KCIFIC LUMBER COMPAN Le ry

SCOTIA PACIFIC COMPANY, LL

1 Delaware corporati nd SALMON CREEA

CORPORATION Del re | t

MARBLED MURKEL

ORTHERN SPOTTED OV

ind ENVIRONMES | PROTECTIE

INFORMATIO ry

On Petition For A Writ Of Certiorarit To The United State:

Court Of Appeals For The Ninth Circuit

BRIEF OF RESPONDENT IN OPPOSITION

1O PETITION FOR WRIT OF CERTIORARI

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QUESTION PRESENTED

Does the Ninth Circuit’s application in this case of uni-

form Supreme Court and appellate court precedent on fee

awards in public interest cases provide any reason to grant a

writ of certiorar?

CORPORATE DISCLOSURE

Pursuant to Supreme Court Rule 29.6, respondent Envi-

ronmental Protection Information Center states that it has no

parent companies, subsidiaries, or affiliates.

TABLE OF CONTENTS

Page

ee pe 8) 8 | a era v

EM PURI io kee cess gees saw bo |

i SeAtemen: OF THE CASE ............ 2

i a 6

A. THIS COURT SHOULD DENY THE PETI-

TION FOR CERTIORARI BECAUSE THE

DISTRICT COURT LACKED SUBJECT

MATTER JURISDICTION OVER EPIC’S

CLAIMS UNDER SECTION 7 OF THE

ENDANGEMED SreCies ACT ...........

1. The District Court Held That It Lacked

Subject Matter Jurisdiction Over Plain-

tiffs’ ESA § 7 Claims ....

2. The ESA Does Not Confer Jurisdiction to

Award Attorney Fees Where There Is No

Jurisdiction Over the Underlying Claim ...

Since the District Court Lacked Jurisdiction

Over EPIC’s ESA § 7 Claims, Pacific Lum-

ber Did Not Prevail On The Merits . .

THE ENDANGERED SPECIES ACT DOES

NOT AUTHORIZE PACIFIC LUMBER’S

FEE MOTION OR ITS PETITION FOR

CERTIORARI...

PACIFIC LUMBER’S PROPOSED STAN-

DARD FOR AWARDING FEES UNDER

THE ENDANGERED SPECIES ACT TO

PREVAILING DEFENDANTS IS UNPREC-

EDENTED AND INCORRECT ............

TABLE OF CONTENTS — Continued

Page

|. Petitioner's Assertion That the ESA Fee

Provision Requires Treating Plaintiffs

and Defendants Equally Is Incorrect....

The Term “When Appropriate” Should

Be Interpreted In Light of the Purposes

of the Endangered Species Act........

3. The Evolution of Statutory Language In

Federal Environmental Citizen Suit Pro-

visions Confirms That Congress

Approves of the Dual Standard For Fees

ih A Ae NG. Gy ee ein eas we

4. The Legislative History of the ESA Sup-

ports the Court’s Dual Standard

errr re rere ne ee ee

5. The Court Has Previously Recognized

That It Is Appropriate to Apply Civil

Rights Fee Jurisprudence To Fee Issues

In Environmental Cases.............

D. THERE IS NO DISCREPANCY AMONG

THE LOWER COURTS FOR THIS COURT

pi, # |) 3 Se ear ararar rere rere ar

E. GRANTING THE PETITION FOR WRIT OF

CERTIORARI WILL NOT AFFECT THE

RIGHTS OF THE PARTIES AND WOULD

BE AM ADVISORY OFINGON ... 2.315.664;

OM ee IE exe eel caeieweyeeecny NS

TABLE OF AUTHORITIES

CASES

Amutts v. Amoco, Inc., 53 F.3d 690 (Sth Cir. 1995)... ..

Atlantic States Legal Foundation v. Arrow Transpor-

tation Co., Civil No. 95-147-HA (D. Ore... Jan. 27.

bg St DI cet St Se aft 2 ee ne

Atlantic States Legal Foundation v. Onondaga

Department of Drainage and Sanitation, 899

F. Supp. 84 (N.D.IN-Y. 1995) Passat anise uae

Bennett v. Spear, 520 U.S. 154 (1997) .20.00.0..9,

Branson v. Nott, 62 F.3d 287 (9th Cir. 1994)...

Carson-Truckee Water Conserv. Dist. vo Sec’y of the

Intertor, 748 F.2d 523 (9th Cir. 1984)... 4. 16,

Christianburg Garment Co. v. EEOC, 434 U.S. 412

Ces) ee Pee er er re eRe eh ea

Clifton v. Heckler, 755 F.2d 1138 (Sth Cir. 1985) |. S

Consolidated Edison Co. v. Realty Investment Co.,

524. F. Supp. 150 (S.D. N.Y. 1961)... ee 19, 28

Earth Island Institute vy. Albright, 147 F.3d 1352

oh. | Cae eRe ra ee eT Pe AN he oooh, v)

Environmental Compliance Oversight Corp. v.

SmithKline Beecham Corp., 1994 WL 675297 (E.D.

Pe. TOON, 2h Be oc eee ee 28

Finn v. United States, 856 F.2d 606 (4th Cir. 1988). &

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ..12, 13. 14

Friends of Boundary Waters Wilderness v. Thomas, 53

re TE CBG Se: PO eon eaneee eee ts |

Greater Detroit Resource Recovery Authority v. EPA,

916 F.2d 317 (Gb Cie, 1990)... eee we 7

Hallstrom v. Tillanook County, 493 U.S. 20 (1989)... .. 26

TABLE OF AUTHORITIES — Continued

Page

Hecla Mining Company v. Washington Wilderness

Coalition. 119 S.Ct. 1940 (March 8, 199%) ....-----:- y

Hensley v. Eckerhart, 461 U.S. 424 (19%2) — 25

Huvhes v. Rowe, 449 U.S. 5 (1980) . 7)

Independent Federation of Flight Attendants vo Zipes,

49] US. 754 (1989)...... : oe eae

Keene Corp. v. Cass, 908% F2d 293 (th Cir. 1990)... .7. %

Keene Corp 4 United States, 50% U.S. 200 (1993) 26

Latch vo United States, $42 F.2d 1031 (Oth Cir 198K). 7

Lordlard vo Pons, 434 US $75 (197%) 19

Marbled Murrelet v» Babbitt (“Murrelet (0) %3 b.3d

106% (9th Cir 1996) $..'6

Marbled Murrelet.. Babbut(“Murrelet Hy. VA 3d

1447 (9th Cir 1997) > 6

Natenal Audubon Society \— Babbitt Case No. CV

94-0105-GT (S.D. Cal., Dec. 15. 1994) 2%

Nanonal Wildlite Federatton 1 Consumers Power

Co. 729 F Supp. 62 (Wo). Mich 1989) 2%

Samrat Resources Defense Council, Inc v Train, STO

Ig 692 (D.C. Cir. 1975) 21, 25

Vewman vv Prevte Park Enterprises, Inc.. 3890 US

100) (196%) 1. 13

Orchard Lane Road Association vo Pete Lien & Sons,

Ine 163d 416, 1994 US. App LEXIS 1508, 24

EIR 20804 (10th Cir 1994) 2%

Palumbo « Waste Technologies Industries, 37 fo 3d

1495. 1994 US App LEXIS 29355 (4th Cir, 1994) 2%

Vil

TABLE OF AUTHORITIES — Continued

Page

Pennsylvania v. Delaware Valley Citizens Council,

M7S U5; SOG CERO ci eae, ey SP Mreeperr 25

Razore v. Tulalip Tribes of Washington, 66 '.3d 236

(Mh Cir. 1995) ....... ae res a ee

Ruckelshaus v Sterra Club, 463 US. 680 (1983)

4, &. 12, 19, 20, 25

Sterra Club. SCM Corp., Civ-82-1076T (W.D. NY.

19KS) ; ae eee . 28

Sterra Club v Shell Out Co., 817 F.2d 1169 (Sth Cir.

197) 4:52 Sa ies et. oe

Smith vo Brady, 972 &2d 1095 (9th Cir 1992) re

Stuvers v. Prerce, 71 &.3d 732 (9th Cir. 1995) ..4

Tennessee Valley Authority v. Hill, 437 US. 183

(197%) , : 1, 24

Truck Components, Inc. v. Beatrice Co., 1996 US

App. LEXIS 9946 (ND. Tl, July 15, 1996) . 28

United States Steel v United States, 385 & Supp. 346

(WI Pa 1974) 1

Villave of Kaktovik v Watt. 689 F.2d 222 (D.C. Cur

19% 2) : ne a ae

WG ex rel DG wv Senatore, 16 &.3d 60 (2d Car.

1994) hie

Washineton Trout. Scab Rock Feeders, 823 b. Supp

S19 (f. D. Wash 1993) ; shin ae

STATUTES

SUS. § 70) . ee.

1S U.S.C. § 2618(d)

Vill

TABLE OF AUTHORITIES

16 USC. § 1540

7 USC. §& SOS

1) USC. § 12700d)

441 SC 6 1356¢d)

42 USC. § 198%

42 USC. § 2000e-S(k)

42 USC. § 6972(e)

42 USC. § 7604(d)

49 USC. &§ 601210b)

91 Stat. 1566

bOl Stat

Act of December 27, 1977,

Act of February 4, 1987, Pub

Licistative History

122 Cong Rec ¥300 (1976)

H. Rep. No. 218, 9Sth Cong.,

H Rep No 412, 93d Cong.,

S. Rep. No. 1196, 91st Cong.,

S. Rep. No 414, 92nd Cong., Ist Sess

Pub |. No

lL. No

Ist Sess

2d Sess

Continued

95-217

100-4

QQ (1977)

& |

(1974)

39 (1970)

(1971)

Paye

TABLE OF AUTHORITIES Continued

Paye

S Rep. No. 698, 94th Cony , 2nd Sess 9 (1976) ZI

+ Kep No S52. 94th Cony Jnd Sess. (1976)

reprinted in L976 US Code Cong & Adm New

4673 |X

S. Rep. Noo 128, 9Sth Cony. Pst Sess) 8% (1977) 23

S Rep. No. Il, 99th Cony . Ist Sess. 63 C1985) 24

> Kep No 99-50 CL9OSS) 1 |

Misch ib Anbots

I> Hodas, knforcement Inca lrranvular bederal Sys

tem, S2 Md Lt. Res 1 44

George Hayer, Lobbyists bor Industry and Oppo

nents, a Showdown ts in the Au, 48 Cony Qo Wkly

Rep. 145 (1990) 24

Ross Mckarlane and Lorn Terry, Crttcen Sutts

Impacts on Permitins and Agency Enforcement

Nat. Resources & bknvir 20, 25 1 |

SEE EY

PO eR seer mere x e es VETTE pres rrter

I. INTRODUCTION

In its Petition for Wz*t ef Certiorari, Pacific Lumber

Company asks this Court te «Jopt a rule that plaintiffs in

citizen suits to enforce the =ndangered Species Act (and a

host of similar federal environmental laws) are liable for

defendants’ attorneys’ fees whenever a defendant obtains a

favorable ruling on a previously undecided issue, which

defendant then argues “furthers the purposes” of the statute.

(Petition, pp. 1, 22.) Such a rule would chill citizen suits out

of existence. This result is clearly inconsistent with the intent

of Congress that citizen-plaintiffs are the “chosen instrument

of Congress to vindicate ‘a policy that Congress considered of

the highest priority.” ” Christianburg Garment Co. v. EEOC,

434 U.S. 412, 416 (1978), quoting Newman v. Piggie Park

Enterprises, 390 U.S. 400, 402 (1968). Similar to the civil

rights statutes referenced in this Court’s opinion in Christian-

burg Garment Co. v. EEOC, in enacting the Endangered

Species Act, “Congress intended endangered species to be

afforded the highest of priorities.” Tennessee “alley Authority

v. Hill, 437 U.S. 153, 174 (1978).

Pacific Lumber’s Petition for Writ of Certiorari does not

meet any of the criteria established by this Court in Supreme

Court Rule 10 for granting certiorari. The decision of the

Ninth Circuit Court of Appeal is not in conflict with the

decision of any other United States court of appeal on the

question presented by the petition. The Court of Appeal’s

decision does not “so far depart from the accepted and usual

course of judicial proceedings .. . as to call for the exercise

of this Court’s supervisory power.” (Rule 10(a).)

Nor does the decision below “decide an important ques-

tion of federal law that has not been, but should be, settled by

this Court” or decide “an important question in a way that

conflicts with relevant decisions of this Court” (Rule 10(c).)

Pacific Lumber argues that “[u]ncertainty and conflict

exists among the circuits and within the lower courts as to

whether — outside of the civil rights arena — the Christianburg

dual standard or the Fogerty rule of parity governs the award

of attorneys’ fees to a prevailing defendant under a neutrally-

worded fee-shifting statute.” (Petition, p. 3.) In fact, this is

not true. Pacific Lumber has not cited, and respondent has

been unable to find, any federal district court or court of

appeal decision that conflicts with the decision of the Ninth

Circuit Court of Appeals in this case. On the contrary, the

decision below is entirely consistent with numerous decisions

of this Court and every decision by the Courts of Appeal and

district courts which have applied the citizen suit fee shifting

provisions of the ESA and similar federal statutes.

This Court should not expend its resources deciding the

question presented here until it has been addressed by addi-

tional circuit courts of appeal, because other circuits may well

add value to the analysis of the issue that will not be available

to this Court at this time. Indeed, this Court recently denied

certiorari in a petition presenting the identical issue under the

Clean Water Act and the Comprehensive Environmental

Response, Compensation and Liability Act. Hecla Mining

Company v. Washington Wilderness Coalition, 119 S.Ct. 1140

(March 8, 1999).

ll. STATEMENT OF THE CASE

Respondent Environmental Protection Information Cen-

ter (“EPIC”) is a California non-profit corporation dedicated

to protecting wilderness, natural communities and biodiver-

sity. In this case EPIC brought two claims under section 7 of

the Endangered Species Act (“ESA”) (16 U.S.C. § 1536) and

one claim under section 9 of the ESA. (16 U.S.C. § 1538.)

The first section 7 claim alleged that the U.S. Fish and

Wildlife Service (“Service”) engaged in “agency action”

requiring formal consultation and preparation of a biological

opinion as a result of opinions it provided to Pacific Lumber

that the California Department of Forestry and Fire Protection

(“CDF”) relied upon to approve Pacific Lumber’s logging

plans. The first section 7 claim related to Pacific Lumber’s

plan to conduct salvage or “exemption” logging in virgin old-

growth redwood forests occupied by the marbled murrelet, a

Sears ee mat Ree eatin eran man aa EO NC TEA

“threatened” seabird. The second section 7 claim related to

eight timber harvest plans approved by CDF located in forests

occupied by “threatened” spotted owls. EPIC’s ESA § 9 claim

alleged that Pacific Lumber’s exemption logging plans would

“take” marbled murrelet in violation of section 9 of the ESA.

In September 1995, EPIC filed the action and obtained a

preliminary injunction on its first section 7 claim. The Ninth

Circuit reversed the preliminary injunction in June 1996.

Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996)

(“Marbled Murrelet I~ at App. G).!

In March 1996, EPIC amended its complaint to allege its

second section 7 claim and in April 1996 obtained a prelimi-

nary injunction on that ciaim. In February 1997, the Ninth

Circuit reversed the second preliminary injunction. Marbled

Murrelet v. Babbitt, 111 F.3d 1447 (9th Cir. 1997) (“Marbled

Murrelet Il”).

These decisions by the Ninth Circuit affirmed the Ser-

vice’s existing, and long-standing, interpretation of the Act

that section 7 does not require “formal consultation” every

time a project proponent requests technical advice to avoid

“take” of listed species.

As the case progressed, EPIC’s ESA § 9 claim succeeded

in causing Pacific Lumber to permanently abandon its plan to

use helicopters to conduct the exemption logging. On Septem-

ber 1, 1995, Pacific Lumber notified CDF of its intent to

commence operations and use helicopters after the breeding

season in the old growth redwood areas occupied by murre-

lets. (Resp. App. J.) On March 8, 1996 the California Depart-

ment of Fish and Game wrote to CDF that “helicopter yarding

activities will likely disturb or damage known sites of threat-

ened or endangered species” in violation of Forest Practice

Rule 1038(b)(7) (Resp. App. K.) On March 22, 1996 U. S.

Fish and Wildlife Service biologist Ken Hoffman testified in

deposition that helicopter yarding in Pacific Lumber’s old

' “App.” refers to Petitioner's appendix. “Resp. App.” refers to

Respondent's appendix submitted herewith.

yrowth redwood forests would cause a “take” of murrelets in

violation of section 9 of the ESA. (Resp. App. L.) Then on

July 9, 1996 Pacific Lumber’s counsel first informed plain-

nffs (during the deposition of Pacific Lumber biologist Sal

Chinnici) that, in order to remove the issue from this litiga-

tion, Pacific Lumber would not use helicopters in its exemp

tion logging plans. (Resp) App. M))

Thus even though EPIC elected not to seek its attorneys’

fees am this case, EPIC could have done so on these facts. A

fee award as “appropriate” when a plaintiff in an BSA citizen

uit has at least partially prevatled and substantially contrib

uted to the goals of the Act. Ruckelshaus vo Sterra, 463 US

640. 642 684 (1983) (applying Clean Water Act fee shifting

provision), Carson Truckee Water Conserv, Dist: vo Sec’y of

the Intertor, 74% F.2d $23 (9th Cir, 19%4) Here, EPIC pre

vatled because this lawsuit was a “catalyst” for Pacific Lum

bers decision to abandon its helicopter logging plans, which

afforded EPIC some of the reheft at sought) Stivers vo Prerce,

1 b 3d 732, 751-752 (9th Cir 1995) EPIC’s success also

uuibstantially contributed to the ESA's yoal of preventing

take oof marbled murrelets that would have occurred tf

Pacitic Lumber had used helicopters

After the District Court dissolved the preliminary mnyunc

Hon avast the exemption harvests based on section 7 of the

PSA and after Pacific Lumber ayreed not to use helicopters

tor those harvests, EPIC sought a temporary restraining order

ayainst the exemption harvests on ESA §& 9 grounds, arguing

that Pacific Lumber’s tractor logging would likely cause

take” of marbled murrelets. (Resp App. N.) EPIC asserted

that the removal of standing trees in areas occupied by murre

lets (he. allof the old growth redwood forests remaining on

Pacitic Lumber’s land) would “harm” the murrelet (as defined

at SO C RR & 17.3). and that standing trees would be

removed either by Pacific Lumber obtaining the approval of

the Service to do so or through the madvertent, but routine

damage to standing trees that occurs when tractors are used to

remove down logs (Resp. App N)

RET CRORE TO nN Teron Te Ee a ee

The District Court denied the motion. With respect to

removing standing trees, the Court relied on Pacific Lumber

resource manager Thomas Herman’s declaration under pen-

alty of perjury in which Pacific Lumber promised to imple-

ment a series of murrelet protection measures designed by the

Service and enforced by the state agencies, which included a

commitment not to remove standing trees without agency

approval. (Resp. App. N. p. 45.) Regarding the destruction of

Standing trees from removing down logs, the District Court

round that EPIC’s “evidence . . consists of conditional facts

that are dependent upon other conditional facts.” (Resp. App

N, S1:17-19.) Significantly, however, the Court noted that

“EPIC’s arguments and their declarations have been set forth

in good faith and in a professional manner.” (Resp. App. N,

$1:21-24.)

Then EPIC’s prediction that Pacific Lumber’s removal of

“down” logs would destroy standing trees (and thereby

“harm” murrelets) came shockingly true in the first week of

Pacific Lumber’s operations. CDF issued a Notice of Viola

tion charging Pacific Lumber with violating Forest Practice

Rule 1038(b)(7), which provides that “no known sites of rare.

threatened or endangered plants or animals will be disturbed

threatened or damaged.” (Resp. App. O.) When the District

Court convened a hearing on October 22, 1996 to Investipate

the matter further, CDF inspectors Hugh Scanlon and John

Marshall testified that Pacific Lumber violated Rule

103%(b)(7) by knocking over and damaging a number. of

standing trees that reached into the forest canopy in the

course of removing down logs (Resp. App. P, pp. 19-23,

/ 91-93). Nevertheless, the District Court again demed EPIC’s

TRO request

Pacific Lumber’s fee motion in the District Court sought

to recover its fees for its defense of both EPIC’s ESA § 7 and

3 9 claims. Regarding, the Section 7 claims, Pacific Lumber

conceded they were not frivolous and raised “an issue of first

impression.” (App. C, p. 25a, no 12.) Therefore, the Ninth

Circuit, in the opinion below, only evaluated Pacific Lum-

ber’s claim for fees for its defense of the section 9 claim

under the Christianburg standard. (App. A, P. 9a.) Pacific

Lumber also conceded that its defense of the section 9 claims

did not contribute substantially to the goals of the ESA.

(Resp. App. Q, 12:10-15.)

ii. ARGUMENT

A. THIS COURT SHOULD DENY THE PETITION

FOR CERTIORARI BECAUSE THE DISTRICT

COURT LACKED SUBJECT MATTER JURIS-

DICTION OVER EPIC’S CLAIMS UNDER SEC-

TION 7 OF THE ENDANGERED SPECIES ACT.

Pacific Lumber’s fee motion and the question presented

in its Petition are based solely on the attorney fee provision of

the ESA. Since the ESA does not confer subject’ matter

jurisdiction over EPIC’s section 7 claims, the court does not

have jurisdiction to award fees attributable to those claims.

1. The District Court Held That It Lacked Sub-

ject Matter Jurisdiction Over Plaintiffs’ ESA

§ 7 Claims.

The Ninth Circuit held that neither the written advice the

Service provided to Pacific Lumber regarding its exemption

logging plans, nor the Service's concurrence that was essen-

tial to state approval of the logging plans constituted “agency

action” under section 7. Marbled Murrelet I, supra, App. G at

&24-83a: Marbled Murrelet Il, supra, App. E at 44a-45a. In

light of the Ninth Circuit's opinions, the District Court

granted the Service's and Pacific Lumber’s motions to dis-

miss under Rule 12(b)(1), stating that the absence of agency

action “compels the conclusion that the court lacks subject-

matter jurisdiction over Plaintiffs’ claims.” (App. D, p. 41a,

n. 6.)

EE er ee NE SN EDN ee EC een ERR,

2. The ESA Does Not Confer Jurisdiction to

Award Attorney Fees Where There Is No

Jurisdiction Over the Underlying Claim.

The attorney fee provision of the ESA permits awards of

fees and costs, whenever appropriate, in “any suit brought

pursuant to” the ESA citizen suit provision. 16 U.S.C

§ 1540(g)(4). Here, respondent EPIC was unable to state a

claim for federal question jurisdiction under section 7 of the

ESA. In analogous cases where subject matter jurisdiction 1s

lacking under a federal statute providing for awards of attorney

fees and costs to a prevailing party, the Ninth Circuit and other

circuit courts have held that the court has no jurisdiction to

award attorney fees. See, e.g.. Branson v. Nott, 62 F.3d 287.

293 (9th Cir. 1994) (vacating award of attorney fees to prevail-

ing defendant under 42 U.S.C. § 1988 for lack of jurisdiction):

Smith v. Brady, 972 F.2d 1095, 1097 (9th Cir. 1992) (where no

jurisdiction existed under Internal Revenue Code. attorney tees

could not be awarded pursuant to the code); Keene Corp. 4

Cass, 908 F.2d 293, 298 (8th Cir. 1990) (civil rights); Amurts ¥.

Amoco, Inc., 53 F.3d 690, 692 (Sth Cir. 1995) (vacating award

to defendant of over $600,000 in fees and costs for lack of

federal jurisdiction); WG. ex rel. D.G. v. Senatore, 18 F 3d 60,

64 (2d Cir. 1994) (Disabilities Act) (concluding that “fee

shifting provisions cannot themselves confer subject matter

jurisdiction’), compare Latch v. United States, 842 F.2d 1031

(9th Cir. 1988) (vacating award of fees under Internal Revenue

Code for lack of subject matter jurtsdiction)

As a general rule, if a district court has wrongfully

exercised subject matter jurisdiction over a dispute,

the appellate court must vacate the district court's

decision, including any award of attorney's fees

Id. at 1033 (citations omitted).2 Here, the District) Court

likewise lacked jurisdiction over EPIC’s ESA § 7 claims.

Therefore, this Court should deny the petition for certiorari

2 Accord, Greater Detroit Resource Recovery Authority v. EPA, 916

F.2d 317, 320 (6th Cir. 1990) (Under the Equal Access to Justice Act

3. Since the District Court Lacked Jurisdiction

Over EPIC’s ESA § 7 Claims, Pacific Lumber

Did Not Prevail On The Merits.

Even if the ESA fee provision provided an independent

grant of jurisdiction to award fees to Pacific Lumber in the

absence of subject matter jurisdiction, such an award 15

Improper here because the District Court's lack of subject

matter jurisdiction means that Pacific Lumber 1s not a “pre-

vailing party” for purposes of a fee award. Branson v. Nott,

supra, 62 F.3d at 293, citing, inter alia, Keene, 908 F.2d at

298 (“Where a complaint has been dismissed for lack of

subject matter jurisdiction, the ‘defendant has not “prevailed”

over the plaintiff on any issue central to the merits of the

litigation.’ ") Since it did not “prevail,” Pacific Lumber can-

not recover its attorneys’ fees. Ruckelshaus v. Sterra Club,

supra

B. THE ENDANGERED SPECIES ACT DOES NOT

AUTHORIZE PACIFIC LUMBER’S FEE

MOTION OR ITS PETITION FOR CER-

TIORARI.

Pacific Lumber argues that it 1s entitled to fees because it

prevailed on its appeals of the two preliminary injunction

orders entered on EPIC’s ESA § 7 claims, and the appellate

rulings allegedly “furthered the purposes of the statute” (Peti-

tron at 2.)° There is an additional threshold legal reason that

this Court should not grant certiorar!

t'nless the statute under which a party seeks attorney s fees contains an

independent grant of jurisdiction, an appellate Court must vacate an award

t attorney's fees af the district court did not have subject matter

uurisdiction over the hugation’). Friends of Boundary Waters Wilderness \

Thomas. $3 F.3d 881 (Sth Cir, 1995). Finn United States, 556 & 2d 606

sth Cir 19%). Clifton .. Heckler, 755 & 2d 113% (Sth Cir. 19%5)

Pacitic Lumber waived any argument that its defense of EPIC

ESA $9 claims “contributed substantially” to the goals of the ESA (Resp

HE ee

EPIC’s ESA § 7 claims were not, and could nut have

been, brought under the ESA citizen suit provision (at 16

U.S.C. § 1540(g)(1)). This Court has held that the citizen suit

provision of the Act does not authorize ESA § 7 claims

against the Secretary of the Interior, which must be brought

under the Administrative Procedures Act (5 U.S.C. § 701 er

seq.). Bennett v. Spear, 520 U.S. 154, 172-174 (1997). Since

the ESA fee shifting provision at 16 U.S.C. § 1540(g)(4)

applies, by its terms, only to suits under § 1540(g)(1), and

EPIC’s ESA § 7 claims were not brought under that section,

there 1s no statutory basis for Pacific Lumber’s claim for

attorneys’ fees for its defense of the ESA § 7 claims. See also,

Earth Island Institute v. Albright, 147 F.3d 1352, 1357 (1998)

(reversing an award of attorneys’ fees to an environmental

plaintiff in an ESA case, citing the holding in Bennett v. Spear

that 16 U.S.C. § 1540(g)(1) does not authorize citizen suits

contesting “the Secretary’s maladministration of the Act”).

Since there is no statutory authority for Pacific Lumber’s fee

motion, this Court should not consider the question presented

in the petition for certiorari.

C. PACIFIC LUMBER’S PROPOSED STANDARD

FOR AWARDING FEES UNDER THE ENDAN-

GERED SPECIES ACT TO PREVAILING

DEFENDANTS IS UNPRECEDENTED AND

INCORRECT.

The ESA authorizes courts to award attorney fees “to any

party, Whenever the court determines such an award is appro-

priate.” 16 U.S.C. § 1540(g)(4). In citizen suits under similar

federal environmental laws. the Ninth Circuit. drawing

directly from this Court’s decision in Christianburg Garment

Co. v. EEOC, supra, awards fees to prevailing defendants

only if the defendants establish that the plaintiff's claim was

“trivolous, unreasonable, or without foundation.” Razore 4

lulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1998

(applying similar fee provisions in the Clean Water Act (33

U.S.C. § 1356(d)) and the Resource Conservation and Recov-

ery Act (“RCRA”) (42 U.S.C. § 6972(¢)). See also Hughes vy.

Rowe, 449 US. 5, 14 (1980) (applying same standard under

42 U.S.C. § 1988). This standard is not unique to the Ninth

Circuit. See infra Part D (listing cases). This standard, more-

over, is consistent with the plain language and Congressional

objectives of the ESA.

Pacific Lumber’s petition, without citing any disagree-

ment among the circuits of the federal court of appeals, or any

conflict with previous opinions of this Court, asks the Court

to consider adopting a new standard. Pacific Lumber argues

that because the fee shifting provision of the ESA (and other

similar statutes) do not provide any guidance to the courts as

to when fee shifting is “appropriate.” plaintiffs and defen-

dants must be treated equally. Under this view, the absence of

statutory guidance would mean that courts would have unlim-

ited discretion, with no judicially created standards to con-

strain the exercise of that discretion. In addition, Pacific

Lumber’s proposed standard would allow courts to award fees

against meritorious but non-prevailing citizen plaintiffs. Such

a standard would undermine the very reason that Congress

authorized citizen suits in the ESA and other federal environ-

mental protection statutes — to encourage citizen enforcement

of those Acts.

+ Although Pacific Lumber refers ominously to an increase in the

number of citizen enforcement actions filed since the ESA was adopted in

1972, Pacific Lumber fails to disclose what percentage have been resolved

against: plainuffs. An increase in the number of meritorious citizen

enforcement actions provides benefits Congress intended. See D. Hodas,

Enforcement of Environmental Law In a Triangular Federal System: Can

Three Not Be a Crowd When Enforcement Authority ls Shared by the

United States, the States, and Their Citizens? 54 Md. L. Rev. 1552 (1995)

(only extensive use of citizen suits as private attorneys general can

safeguard the enforcement system from collapse and prevent states from

using lax environmental enforcement as an economic development tool.”).

Congress has recently acknowledged: “Citizen suits are a proven

enforcement tool. They operate as Congress intended — to both spur and

——————————eeEeEeEEEEE————EE

1. Petitioner’s Assertion That the ESA Fee Pro-

vision Requires Treating Plaintiffs and Defen-

dants Equally Is Incorrect.

Pacific Lumber argues that because the ESA fee shifting

provision does not distinguish between plaintiffs and defen-

dants, judicial decisions which place limits on the Court's

exercise of discretion by restricting fee awards against plain-

liffs to cases that are frivolous or unreasonable, contradict the

Statute. But courts routinely develop rules that bound the

exercise of statutorily authorized discretion. See Independent

Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758

(1989) (“Although the text of the provision does not specify

any limits upon the district courts’ discretion to allow. or

disallow fees, ina system of laws discretion is rarely without

limits.”). In fact, that ts what this Court did in Christianburg,

supra, with respect to Tithe VIL. And in this case, Congress

specifically included the phrase “when appropriate” in the

Statutory language to guide the exercise of discretion in

awarding fees.> Pacific Lumber’s “plain meaning” analysis

overlooks both this statutory guide to judicial discretion and

supplement . government enforcement actions. They have deterred

violators and achieved significant compliance gains.” S. Rep. No. 99-50, at

28 (1985). Even the article cited by Pacific Lumber acknowledges that

“[plrivate enforcement can play a critical role in ensuring compliance with

these statutes. [t can spur appropriate governmental action and can ensure

that the laws are enforced against significant violators that may otherwise

evade detection.” Ross McFarlane and Lori Terry, Citizen Suits: Impacts on

Permitting and Agency Enforcement, Nat. Resources & Env’t 20, 25. More

enforcement means more compliance with the ESA and greater

environmental protection. The fact that petitioners would preter less

enforcement of the ESA is not a reason for granting a writ of certiorari.

* In fact, to remove limits on judicial discretion would promote

inconsistent and ad hoc standards of the type that Pacific Lumber

purportedly seeks to avoid.

this Court's historic role in guiding the exercise of discretion

to award fees

2. The Term “When Appropriate” Should Be

Interpreted In Light of the Purposes of the

Endangered Species Act.

As this Court recognized in Ruckelshaus vo Sterra Club,

463 US. 680, 643 (19%3) the term “when appropriate” does

not conclusively explain when fees should be awarded. In the

context of statutes that cast citizen plaintiffs in the role ot

“private attorneys general.” this Court: has already deter-

mined. in Christianburg Garment Co. vo EEOC, supra, that tt

iS “appropriate” to impose a more stringent standard on pre

vailing defendants who seek fees, even when the statutory

language does not on its face distinguish between prevailing

parties, because such a rule furthers the purposes of the

statute. The Ninth Circuit and the district: court: correctly

applied this so-called “dual” standard (see Fogerty v. Fantasy,

Inc.. 510 U.S. 517, 520 (1994)) in denying Pacific Lumber’s

request for fees in this case

The rationale for treating prevailing plaintiffs and = pre-

vailing defendants differently for the purpose of awarding

fees in citizen suits as clearly explatned in Christranburg

Christianburg interpreted the fee provision in Tithe VIL, which

contains language authorizing courts to award fees to the

“prevailing party’® Like Pacitic Lumber in this case, the

prevailing defendant in Christianburg argued that the “plain

meaning” of Tithe VID's tee provision did not allow courts to

treat prevailing plaintiffs and prevailing defendants differ-

ently for the purpose of awarding fees. The Court reyected

that argument outright: “[T]he permissive and discretionary

languayve of the statute does not even invite, let alone require,

the prevailing party a reasonable attorney's fee (including expert fees)

as part of the costs[.}" 42 USC § 2000 S(k). The fee provisions of the

PSA as virtually identical

eee ne

such a mechanical construction.” 434 U.S. at 41%. Rather than

treating the parties similarly, the Christtanburg court identi-

fied two “equitable considerations” that compelled a more

lenient fee standard for prevailing civil rights plaintiffs, and a

more difficult standard for prevailing defendants

The first consideration 1s that the “plaintiff ts the chosen

instrument of Congress to vindicate “a policy that Congress

considered of the highest priority.” ” 434 US. at 41% (quoting

Newman v. Piggte Park Enterprises, Inc, 390 US. 4F0

(196%)). The second consideration is that when a district court

awards counsel fees to a prevailing plaintiff, tos awarding

them against a violator of federal law. /d. To award tees

against a good faith, but non-prevailing plaintiff, would drs-

courage private enforcement and undermine the very purpose

of citizen enforcement provisions. See 434 US. at 422

(assessing fees against meritorious but non-prevailing plain-

uff “would undercut the efforts of Congress to promote the

vigorous enforcement of the provisions of Tithe VII") Based

on these policy considerations, and backed by legislative

history indicating that Congress intended to encourage citizen

enforcement and deter frivolous suits, the Court in Christian-

burg held that lower courts could award fees to a prevailing

Tithe VII defendant only upon finding that the plaintiff's

action was “frivolous, unreasonable, or without foundation,

even though not brought in subjective bad faith.” 434 U.S. at

421.

This “dual” standard was reaffirmed in Fogerty v. Fan-

tasy, Inc., supra. Fogerty involved a fee decision governed by

§ SOS of the Copyright Act, which contains fee-shifting lan

guage similar to the civil rights statutes. See 17 U.S.C. § S05

Unlike the instant case, the circuits at the time of Foverty

were divided over whether a prevailing defendant seeking

fees under the Copyright Act should be required to establish

that the plainuff’s infringement claim was frivolous or vex

atious. SIO U.S. at S21 n.&. After reviewing the ygoals and

policies of the Copyright Act, this Court declined to apply the

“dual” standard, because the “equitable considerations” of the

Pe ee ee a ee

Nor did this Court find Congressional intent in the Copyright

Act to encourage plaintiffs in particular to bring meritorious

infringement claims. Rather, this Court found the Copyright

Act's goal of “stimulat{ing] artistic creativity for the general

public good,” is furthered by vigorous claims and defenses.

Fogerty, S10 U.S. at 527 (“defendants who seek to advance a

variety of meritorious copyright defenses should be encour-

aged to litigate them to the same extent that plaintiffs are

encouraged to litigate meritorious claims of infringement.”).

The Court, however, took the opportunity to expressly

reaffirm that the “dual” standard is appropriate under other

statutes, including public interest statutes with fee shifting

language virtually identical to the fee shifting language of the

Unlike the Copyright Act, both of the “equitable consid-

erations” that persuaded the Court to adopt a dual standard in

Christianburg are present in ESA citizen enforcement actions.

The citizen suit provisions in the ESA, like the citizen suit

provisions in the civil rights statutes, were enacted to encour-

age citizen participation in enforcing the important Congres-

sional objective of conserving endangered species. In

addition, when a court awards fees to a prevailing plaintiff in

an environmental citizen suit, as noted in Christianburg,

supra, it is awarding fees against a violator of federal law.

Citizen suits provide a secondary benefit that should be

included in the analysis of equitable considerations. Citizen

suits increase enforcement actions, thereby insuring more

uniform compliance, so that those who comply with the ESA

are not at a competitive disadvantage with those who do not

comply. Citizen enforcement “can provide the states, through

dedicated and persistent litigation, with the level playing field

that the federal government cannot provide on its own.” D.

Hodas, Enforcement In a Triangular Federal System, supra,

52 Md. L. Rev. at 1574-1578.

The second equitable factor in Christianburg also applies

when interpreting the phrase “whenever . . . appropriate” in

the ESA. When plaintiffs prevail, it means that the fees that

are awarded will be paid by an entity that has been found to

be in violation of the statute. As in Christianburg, this factor

supports treating prevailing plaintiffs differently than prevail-

ing defendants. Unlike imposing fees on violators of the law,

awarding fees against meritorious but non-prevailing plain-

tiffs would punish entities for having invested years of time

and effort in performing a civic duty (enforcement of the law)

with no expectation of monetary compensation.

This Court's decision in Bennett v. Spear does not sup-

port Pacific Lumber’s argument that plaintiffs and defendants

must be treated equally for all purposes under the ESA. In

fact, in Bennett this Court followed the principles stated in

Fogerty in the context of the ESA, finding that the “obvious

purpose” of the ESA citizen suit provision “is to encourage

enforcement by so-called private attorneys general.” Bennett,

117 S.Ct. at 1162. This finding by the Court brings the ESA

squarely within the rationale of Christianburg. In both the

ESA and the Civil Rights Act, Congress wanted to encourage

plaintiffs, acting as private attorneys general, to sue. There-

fore, the dual standard should apply to the ESA.

Like virtually all of the cases cited by Pacific Lumber,

Bennett involves plaintiffs under the Act. Specifically, the

question decided in Bennett was whether plaintiffs with

purely economic interests have standing to sue under the

citizens’ suit provision of the ESA. The question of whether

certain plaintiffs have standing has no bearing on the standard

defendants must meet to obtain fees under the ESA.’ By

broadening the category of citizens who can sue under the

’ As the Supreme Court noted in Bennett, to determine standing, “we

look not to the terms of the ESA’s ciuzen-suit provision, but to the

substantive provisions of the ESA, the alleged violations of which serve as

the gravamen of the complaint.” 117 S.Ct. at 1167. Thus, standing was

determined by examining the “zone of interests” which the statute protects,

not by the term “person” in the statute.

’

Act, the Supreme Court in Bennert plainly intended to encour

ave citizens’ suttys not deter them. To adopt the standard

proposed by Pacific Lumber would do exactly that In short,

Bennett v. Spear does not endorse an “evenhanded” standard

tor awarding fees.*

Pacttic Lumber also relies on Carson-Truckee Water

Conserv. Dist. vo Sec'y of the Intertor, 748 F.2d 523 (9th Cit

O84), which the Ninth Circuit overruled ino the opinion

below. In Carson- Truckee, a water district sued the Depart

ment of the Intertor to force it to release water mmpounded to

recover endangered fish species. The Pyramid Lake Patute

lribe intervened as a defendant to oppose the release of more

water, The intervenor and the Interior Department: suc

cesstully defended the suit by relying on the department's

obligations under section 74a ht) of the ESA to conserve

listed fish species. The plamtutt did not make any clam for

relief under the FSA, instead the intervenor made affirmative

claums under the ESA to prevent additional water discharges

Vso, the intervenor participated in the litigation voluntarily,

and was not alleged to be in violation of the statute. There

fore, the intervenor was more ke an ESA plaintiff, because it

was the intervenor who plead claims tor relief under the ESA

This factual contest of the case is not apparent from

reading the decision denying attorneys’ fees reported at Car

son- Truckee Water Conserv, Dist. vo See’y of the Intertor, 748

2d $238. buts apparent from the Ninth Circuit's decision on

the merits reported at Carson Truckee Water Conserv, Dist. y

Sec’y of the Intertor, 741 Fld 257 (1984). Given this: pro

cedural context, the Court's treatment of the intervenor like

in ESA plamtutt for purposes of a fee award ts consistent with

Phos Court's recoynition in Bennert. that an cconomically motivated

plamntttin bSA litigation “may recover then litigation costs” under 16

USC g 18400904) (520 US at Lol) says nothing about the standard that

applies to such a party. Both Chrostianburg and the opinion below

ontemplate thatan economically motivated defendant “may recover” tees

where the plainutt’s case as “tivolous, unreasonable or without

foundation

the Ninth Circuit's decisions in Razore v. Tulalip Tribes and

the opinion below.

Carson-Truckee is not controlling, or even persuasive,

for several more reasons. Carson-Truckee was an ESA § 7

case. As discussed above, the ESA fee provision at

§ 15400 2)(4), by its terms, only applies in citizen suits under

§ 15400201). In Bennett vo Spear this Court held that the

citizen suit provision of the Act does not authorize section 7

clamms against the Secretary of the Interior, which must be

brought under the APA. Therefore, there was no statutory

authority under the ESA for a fee award to the intervenor tn

Carson-Truckee.”

In the instant case, plaintiffs established that) Pacific

Lumber’s plan to use helicopters would “take” marbled mur-

relets and EPIC’s prediction that the removal of downed trees

would destroy standing trees in marbled murrelet habitat

came true as soon as Pacific Lumber began logging. To order

plaintiffs to pay defendants attorney fees under such circum

stances would not be “appropriate,” and would certainly deter

other citizens from bringing the sorts of enforcement actions

that Congress so clearly intended. Indeed, adopting the rule

proposed by Pacific Lumber would encourage all partially

successtul defendants to seek their attorneys’ fees, if for no

other reason than to sap the resources of their adversaries

3. The Evolution of Statutory Language In Fed-

eral Environmental Citizen Suit Provisions

Confirms That Congress Approves of the

Dual Standard For Fees In Citizen Suits.

Pacific Lumber argues that because the Pipeline Safety

\ct of 1992 and several other recent statutes explicitly bifur-

cate the fee standard for prevatling plaintiffs and prevailing

’ This wsue was ratsed in Carson-Truckee but the Ninth Circuit

declined to rule on ut. /d. 748 F.2d at 526

defendants, 49 USC § 60L21Cb), the absence of similar

language im the BSA means by negative impheation that

Congress intended a single standard to be applied to both

parties under the ESA) (Pettuon at TS, n 19) The more

exploit bifurcation ino recent: leyislation, however, merely

indicates Congressional approval of the dual standard devel

oped by courts in interpreting the “whenever appropriate”

language of the ESA and other public interest statutes

The citizen suit and tee shifting provisions were added to

the Pipeline Safety Actin 1976. Congress acknowledged that

the purpose of the fee shifting provisions was to “insure

effective enforcement and compliance” with the Act. So Rep

No 852, 94th Cong , 2nd Sess (1976), reprinted in LUTOUS

Code Cony. & Adm News 4673. In imposing a more stringent

fee standard upon prevailing defendants, Congress spect

fically noted that this provision was consistent with United

Srates Steel vo United States, 385 & Supp 346 (WD Pa

1974)0 United States Steel, in turn, was a case interpreting

§ 7O6¢kK) of the civil rights statutes) Although § 706(kK), like

the provisions of the ESA, does not expressly identify a fee

standard for prevailing defendants, the United States Steel

court applied a “dual” standard based upon the same reason

ing later apphed by this Court in Christtanburg, and declined

to award fees to a prevailing defendant.'? By incorporating

the yudicially developed dual standard into the statutory Tan

guage of the later Pipeline Safety Act, Congress accepted,

rather than reyected, the dual standard approach to interpret

ing the “whenever appropriate” language found both in

civil rights statutes and in the federal environmental statutes

like the ESA

There ws further evidence that Congress has accepted the

dual standard approach to fee applications under federal envi

ronmental statutes. Congress has twice amended the Clean

Four years later this Court affirmed this type of fee analysis in

Christanbury Garment Co vo EROC, 434 US. 412 (1978)

——————————eaEEEeEeEeEE—————E——————w

Water Act (43 US © 8 1251 ef sed.) Since the “whenever

appropriate” language was adopted in the citizen suit provs

ston of the CWA. See Act of December 27, 1977. Pub 1. No

YS 217, OT Stat. 1566. Act of kebruary 4, 1987. Pub. L No

O04, TOL Stat. 7) At the trme of those amendments, courts

were applying the dual standard to fee awards, and the only

ease to have addressed the dual standard ino the specits

context of a CWA citizen suit had beld that the dual standards

Was appropriate im such cases) See, Consolidated Edison Co

\ Realty Investment Co, S24 4 Supp. 150, 183 (SDNY

POST) (defendants may be awarded fees under CAA only af

case Was “objectively trivolous ")) Ttas well established that

“Congress ts presumed to be aware of an administrative. of

Judicial interpretation of a statute and to adopt that Inferpreta

tion When it re-enacts a statute without change ° Lordlard 4

Pons, SANUS. STS, S80 (L978) Had Congress disagreed with

the yudicial interpretations berny applied to the “where appro

priate” language of the civil rights laws or the CWA, it could

have corrected that interpretation. Since at did not, the rat

iication: principle indicates that Congress agrees with the

dual standard developed by this Court, and ats application to a

broad range of public interest: statutes with common. fee

shifting language

4. The Legislative History of the ESA Supports

the Court’s Dual Standard Approach.

Pacific Lumber argues that “[t}he legislative history of

the fee shifting provision of the ESA reveals no congressional

Intent to favor plamtitfs over defendants” (Petition at 18.)

This as not true. The legislative history of federal environ

mental statutes, meluding the ESA, demonstrates that the

words “any party” an the fee-shitting provision were not

Intended to permit defendants to seek fees except Where the

uit as obrectively meritless or harassing. See Ruckelshaus,

supra, 408 US. at 693, n.13 (CAA legislative history mate

tals stating that courts could award costs and attorneys’ fees

against clazens that bring “frivolous and harassing actions” )

lndeed the PSA's legislative history conclusively demon

strates that Congress intended the dual standard to apply to

the BSA’S tee provision When Congress enacted the ESA

Giliven stunt provision, the House Report states that its fan

suage os parallel to that in the Marine Protection, Research

and Sanctuaries Act, and as “to be roterpreted in the same

fashion HE Rep No 412, 93d Cong, Ist Sess. 19 (1973)

Ihe Senate Committee Report on the MPRSA’ explicitly

adopted the dual standard for fee awards, and said that: pre

vautling plamtitts could receive fees im meritorrous suits, hile

prevailing defendants could only receive fees at the purpose

oft the suit was harassment (1972 US Code Cong & Admin

News 4234, 424950) This legislative history as cited: at

Villave of Kaktovek vo Watt, 689 F 2d 222, 225, 0.14 (DC. Cu

YS?) No cases of legistative history amply that defendants

aie entitled to receive statutory attorney fees mn an environ

mental sur ounder any other standard

Stotharhy, the legislative history of othe federal environ

mental statutes shows that Congress intended to use fee

awards to cncourage citizen suits, and limit awards to defen

dants to cases in whieb sums were found to be trivolous of

harassing the very standard that has been consistently

apphed by courts, including this Court, m cases where Con

eress has authornzed citizens to entotece public baws

Phe tust cavironmental statute to authorize citizens fo

suc and to recover tees and costs when they prevail was the

Clean An Act ot L970 CAA’) The CAA provides that tees

can be awarded to “any party, whenever the court determines

such award as appropriate 42 USC § 76040) This provi

ston has served as a model for every other environmental

Given suit proviston that has come after i As this Court

noted in Rucklestaus vo Sterra Club, supra, 463 US) at O82,

not. “the interpretation of ‘appropriate® in § 307¢f) controls

Construction oof the term oa [sixteen other environmental]

tatutes Jincluding the CWA" The Senate Report on the

CAA explains the legislative understanding of when an award

totees to a defendant might be “appropriate”

Concern was expressed that some lawyers would

use section 304 to bring frivolous and harassing

actions. The Committee has added a key element in

providing that the courts may award costs of liuga-

tron, including reasonable attorney and expert wit-

ness fees, whenever the court determines that such

action isin the public interest. The court could thus

award costs of ligation to defendants where the

litigation was obviously frivolous of harassing. This

should have the effect of discouraging abuse of this

provision, While at the same time encouraging the

quality of the actions that will be brought

S Rep. No. 1196, Yist Cong, 2d Sess 36-39 (1970) (quoted

i Natural Resources Defense Council, Inc. v. Train, 510 F.2d

692, 725 (D.C. Cir. 1975)

The next environmental law adopted by Congress with a

fee shifting citizen suit provision was the Federal Water

Pollution Control Act Amendments of 1972 (later renamed

the Clean Water Act ((CWA")) The fee shifting language of

the CWA was virtuaily identical to that of the Clean Air Act

And as with the Clean Ai Act, Congress made clear that the

“whenever... appropriate” Linguage was intended to encour

ave citizen enforcers, and provide for awards to defendants

only when cases were “trivolous.” See So Rep. No. 414, 92nd

Cony., [st Sess. SE (1971) Co The court could thus award costs

of litigation to defendants where the Higation was obviously

frivolous or harassing ”)

In 1976 Congress enacted the Torre Substance Control

Act, and included a provision tor ciazen enforcement mod

cled atter similar provistons in the prior environmental stat

utes noted above. S. Rep. No 698, 94th Cong., 2nd Sess. 9

(1976) Tt provides that

Phe decision of the court in an action commenced

under subsection (a), or of the Supreme Court of the

Uinited States on review of such decision, may

include an award of costs of suit and reasonable

fees for attorneys and expert witnesses tf the court

determines that such award is appropriate.

1S U.S.C. § 2618(d)

The legislative history of this proviston unequivocally

states that the standard for recovery of attorney tees by

defendant is different, and more stringent, than the standard

for plamtutts

In exceptional circumstances, fees and costs might

also be awarded to defendants where they must

‘defend against unreasonable, frivolous, meritless

or vexatious actions " United States Steel Corp

v. United States, 385 FF Supp. 346, 348 (W.D. Pa

1974). Where plaintiff's proceeding is brought in

good faith or on the advice of competent counsel,

fees and costs would ordinarily be denied to a

prevatling defendant. Richardson vo Hotel Corpora

tion of Amertca, 332 k Supp. 519 (B.D. La. 1971),

aff'd 468 F.2d 9ST (Sth Cir. 1972). The standard for

awarding fees and costs to a prevailing defendant ts

not the same as for a plaintiff because, if it were,

the risk, to the average citizen of bringing suit

under this section would be so great it would dis

courage such suits

122 Cong. Rec. 8300 (1976) (statement of Sen. Tunney)

In 1977 Congress enacted the Surface Mining Control

and Reclamation Act, which includes a citizen suit: provision

modeled after similar provisions in the Clean Air Act and

other environmental statutes. [It provides that

The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section,

may award costs of litigation (including attorney

and expert witness fees) to any party, whenever the

court determines such award ts appropriate.

30 U.S.C. § 1270(d).

»3

fn both the House and Senate reports accompanying the

leyislation, Congress showed clear support for the dual stan

dard for attorney fee recovery, stating that prevatling deten

dants could only recover attorney fees where plaintiffs’ suit is

brought in “bad tanth.” The Senate Report states

The provision ts not meant to deter citizens from

bringing yood faith actions to insure the Act os

bemy enforced by the prospect of having to pay

their opponent's counsel fees should they lose

Under this section, a defendant can be awarded

reasonable fees from the cittcen only tf he can show

that the cittcen brought the action ino ‘bad faith

This as similar to other citizen suits) provistons

involving the award of attorney’s fees. [Emphasis

added]

S Rep. No. 128, 9Sth Cony. Ist Sess. 88 (1977). Similarly

the House Report States

Thus, tas the Committee's mtention that this provi

sion be construed consistently with the general prin

ciple that an award may be made to a defendant

only if the plaintiff has instituted the action solely

‘to harass or embarrass’ the defendant. United

States Steel Corp. v. United States, SV b2d 354,

364, (3d Cir. 1975). Tf the plaintiff is “motivated by

malice and vindictiveness’ then the court) may

award counsel fees to the prevailing defendant

Carrton v. Yeshiva University, 53S k2d 722 (2d Cut

1976). Thus, if the action is not brought ino bad

faith, such fees should not be allowed. See Wright

Stone Container Corp., 524 F.2d 1OS8 (8th Cir

1975); see also Richardson v. Hotel Corp. of Amer

tca, 332 KF. Supp. 519 (B.D. La. 1971), affirmed

without published opinion, 468 F.2d 951 (Sth Cit

1972). This standard will not deter plaintiffs from

seeking relief under these statutes, and yet wall

prevent their being used for clearly unwarranted

harassinent purposes. [Emphasis added]

H. Rep. No. 218, 95th Cong., Ist Sess. 90 (1977)

the Comprehensive Environmental Response, Compen

sation and Laability Act of 1980 (CERCLA), adopted: in

IYS6, provides for an award of fees to “the prevailing of

uibstantially prevailing: party whenever the court determines

oh award as appropriate " The Senate Report accompanying

CERCLA states “As wath sumilar provistons in other environ

mental citizens suit laws, this wall encourage private enforce

ment by allowing such awards to private plaintiffs where the

Court determines the bringing of the action was in the public

rnterest. While discouraying frivolous suits by allowing costs

to be awarded to defendants in appropriate cases” So Rep

No Tl. 99th Cony dst Sess 68 CL9OBS)

Congress has extensive expenence in dratting citizen suit

legestatron. and as well aware of the dual standard that courts,

mcluding this Court, have applred in cases where citizens

have been authorzed to entoree public laws Congress thas

msistently expressed approval of that) standard Par trom

upporting Pacitic Lumber’s argument, the leyistative history

focnvirommental legishatton supports the Ninth Circuit's

ipplioation of the Chrostranbury standard to Pacitn Lumber ss

feo applreation aon thas case

S. he Court Has Previously Recognized That It

I, Appropriate to Apply Civil Rights Fee

Jurisprudence To Fee Issues In Environmen-

tal Cases.

Pocete Lumber argues that the Christranbure standard

hould not be applred to environmental cases because of the

unique Status of civil royvhts citizen suits” and there as “ne

parallel to th natronal Commitment to deal wath discriumina

bron (Pettthon at 19) The “differences” cated by Pacatn

lumber however, are mot differences at all

Indeed. this Court has prestousty recoynized that “Con

{ mtended endanyvered species to be attorded the hivhest

Hoprroritie lennessee Valley Authority vo Hell, supra, 437

ns piace aaa ai tala

tS. at 174. There can be no higher priority than the “high-

est” priority, thus Congress viewed endangered species pro-

tection on a par with ending racial discrimination,

This Court has also recogmized the similarities advanced

by environmental and civil rights statutes and the similarity in

methods used to achteve those obyectives: “Given the com-

mon purpose of both [Clean Air Act] § 304(d) and § 19%8 to

promote citizen enforcement of important federal policies, we

find no reason not to interpret both provisions governing

attorney's fees in the same manner.” Pennsylvanta v. Dela

ware Valley Cuncens Council, 478 U.S. 546, 560 (1986). See

also Hensley vo Eckerhart, 461 US. 424, 433 n7 (1982)

(interpreting fee provisions of section 1988 and of the 1964

Civil Rights Act similarly)

The legislative history of the citizen suit provision of the

Clean Aw Act, on which the ESA’ provisions are based,

establishes that Congress was influenced by the success of

citizen enforcement of the Civil Rights Act and used it as a

model tor the Clean Air Act citizen suit proviston

Our experience im areas of massive unlawful racial

discrimination tells us that however hard it

might try, government will never have the man-

power, the techniques, or the awareness necessary

to enforce the law for all) Private enforcement ot

those laws as the only way the mdividual can be

assured that rights cannot be violated wath impu

nity. Pollution control as another such area Tf we

are really serrous about controlling the quality of

our environment before it destroys the quality of

our lives, we must give the individual affected by,

or concerned about pollution in his life, the power

to stop them through the legal process

Statement of Attorney General Ramsey Clark in support of

ciuzen suit proviston of Clean Air Act of 1970, reprinted in

Vatural Resources Defense Council, Inc. v. Train, supra, S10

bod at 728 (DC Cur 1975) This Court recognized as early

as Ruckleshaus vo Sterra Club, supra, 463 US. at 682 m1

(1983), that “the interpretation of ‘appropriate’ ing 307(t) fot

the Clean Air Act] controls construction of the term in [six

teen other environmental statutes, including the Endangered

Species Act}.” In both civil rights and environmental cases,

Congress sought to enlist the aid of citizens in entorcing that

law and preventing violations. Pacific Lumber cites no

authority for the proposition that Congress was less concerned

with violations of environmental laws than it was with viola

trons of civil rights laws, and Respondent ts unaware of any

such authority

Pacific Lumber’s argument that environmental citizen

suits “support, not supplant” government agency enforcement

authority (Petition at 20) 1s beside the point. Congress meant to

encourage cizen enforcement in’ both cases, and the dual

standard adopted in) Christianburg is necessary to achieve

Congressional purposes in both cases.'! Perhaps more impot

tantly, since plaintiffs im environmental cizen suits do not

stand to gain financially trom acting as private attorneys gen-

eral, they will be unwilling to risk) prosecuting even) mer-

itortous cases if faced with the risk of paying a defendant's

fees when, as in this case, they succeed in same respects but

lose an issue of first impression im the Court of Appeal. The

interpretation urged by Pacific Lumber would “render| | the

citizen suit} statute useless, in all or nearly all instances, to

effect the very object it was originally enacted to accomplish.”

Keene Corp. v. United States, SO8 U.S. 200, 213-14 (1993).1°

1! Pacific Lumber points to this Court's discussion of the sixty day

notice requirement and “diligent prosecution” defenses of the Clean Water

Actin Hallstrom vy. Tillamook County, 493 US. 20, 29 (1989) as evidence

that “Congress [did not] manifest an intent to favor plaintiffs over

defendants.” (Pettuon at 20.) But again, this observation does not indicate

that Congress was less concerned with enforcement of environmental Laws

than civil rights laws) Assuming the sixty day notice and diligent

prosecution provisions are satisfied, the analysis ts the same — did Conytess

intend to encourage ciuzen enforcement? The answer is yes in both

environmental and civil rights cases

2 Pacific Lumber points out that nine specified environmental

organizations are relatively well funded, and are not “impecunious ” But

D. THERE IS NO DISCREPANCY AMONG THE

LOWER COURTS FOR THIS COURT TO

CLARIFY.

Pacife Lumber’s statement that there is “contusion” in

the lower courts regarding which standard to apply ts simply

accurate. Pacitie Lumber is attempting to create contusion

where there i none. In reality, lower courts are uniformly

applying the “dual” standard when making fee determinations

mm environmental citizen suits) Notwithstanding the Ninth

Circunt’s now overruled decision in) Carson Truckee Water

Conserv, Dist. vo Sec’y of the Intertor supra, Respondent is

unaware of any deciston in which a court has applied the

“contributed substantially standard to a fee application by a

defendant alleged to be in violation of a federal environmen

tal protection statute. Phere is simply no unsettled law tor this

Court to clarify

Sterra Club vo Shell Oil Co.. SVT B2d 1169 OSth Cir

1987), the only case cited by Pacific Lumber in which a

prevailing defendant was awarded tees, ts not to the contrary

That case contains no discussion of the standard for a tee

award to a defendant. The facts of the case indicate that the

court likely used the “dual” standard and, upon tinding the

plamtiffs’ claims to be frivolous, awarded tees to the prevatl

ing defendant. Also, the opinion indicates that “costs” were

the fact that nine organizations have substantial assets says nothing about

the hundreds of local, undertunded environmental organizations, such as

EPIC, and individuals who make use of the citizen suit provisions ot

tederal environmental Laws, who are indeed impecunious Motcover

whether a particular plainttt is umpecunious ts a relative term) None of the

nine well funded organizations tdentified have anywhere near the assets of

a company ke Pacific Lumber The article cited by Pacitie Lumber

acknowledges the obvious that environmental groups “cannot begin to

match industry political action committees in political cash ~ George

Hager, Lobbyists: For Industry and Opponents, a Showdown ty on the No

48 Cong. Q. Wkly. Rep. 145, 145 (1990)

awarded, but is ambiguous as to whether attorneys’ fees were

awarded. 817 F.2d at 1176.

In addition to the Ninth Circuit and district court opin-

ions below, every other court in the country which has consid-

ered a fee request by a prevailing defendant tn a citizen suit

has applied the same stringent standard and dented a fee

award. One district court applied a “frivolous or bad faith”

standard to an ESA citizen suit and denied defendant's fee

request. National Audubon Society v. Babbitt, Case No. CV

94-O105-GT (S.D. Cal., Dec. 15, 1994). Five district courts

have applied a “frivolous” or “meritless” standard and have

uniformly denied requests by prevailing defendants for fees

and costs in citizen suits under the Clean Water Act. Atlantic

States Legal Foundation v. Arrow Transportation Co., Civil

No. 95-147-HA (D. Ore., Jan. 27, 1997); Atlantic States Legal

Foundation v. Onondaga Department of Drainage and Sanita-

tron, 899 F. Supp. 84. 87 (N.DLN-Y. 1995): Washington Trout

ve Scab Rock Feeders, 823 F. Supp. 819, 821 (E.D. Wash.

1993). National Wildlife Federation v. Consumers Power Co.,

729 F. Supp. 62, 64 (W.D. Mich. 1989); Sterra Club v. SCM

Corp., Civ-82-1076T (W.D. NOY. 1985). A district court has

applied a “trivolous or harassing” standard and denied a

request for a prevailing defendant in a citizen suit under the

Clean Air Act. Consoltdated Edison Co. v. Realty Investment

Assoc... supra. Five courts have denied tees to. prevailing

defendants in RCRA citizen suits based on findings that the

suits Were not frivolous. Razore v. Tulalip) Tribes, supra;

Orchard Lane Road Association v. Pete Lien & Sons, Inc., 16

b.3d 416, 1994 U.S. App. LEXIS 1508, 24 ELR 20804 (10th

Cir. 1994); Palumbo v. Waste Technologies Industries, 37 F.3d

1495, 1994 U.S. App. LEXIS 29355 (4th Cir. 1994): Truck

Components, Inc. v. Beatrice Co., 1996 U.S. App. LEXIS

9946 (N.D. TL. July 15, 1996). Environmental Compliance

Oversight Corp. vo SmithKline Beecham Corp., 1994 WL

675297 (E.D. Pa., Nov. 21, 1994).

E. GRANTING THE PETITION FOR WRIT OF

CERTIORARI WILL NOT AFFECT THE

RIGHTS OF THE PARTIES AND WOULD BE

AN ADVISORY OPINION.

The District Court in this case took the efficient course of

action and decided Pacific Lumber’s fee motion under both

possible standards, finding that plaintiffs’ claims were not

frivolous, and that Pacific Lumber did not “contribute sub-

stantially” to the goals of the ESA:

However, the result Pacific Lumber sought, fur-

thered and obtained was the validity of its permits

so that it could proceed in its planned harvests. The

court cannot conclude that Pacific Lumber’s pursuit

of conducting a timber harvest serves the public

interest in implementing the ESA’s goals of preserv-

ing endangered and threatened species. Because

Pacific Lumber sought advice and consultation from

the federal agency before the litigation and will,

presumably, continue to do so after this litigation,

the court cannot find that Pacific Lumber acted in

such a way as to substantially contribute to the

goals of species preservation and an award of fees

for its part in the litigation would be inappropriate.

The court will not grant Pacific Lumber attorneys’

fees under the ESA’s fee shifting provision.

(App. C, p. 24a.) Given the evidence, cited above in Part II,

that Pacific Lumber’s logging actually harmed occupied mar-

bled murrelet habitat, the District Court's finding ts

unsurprising, and certainly not an abuse of discretion,

Pacific Lumber implies that because the Ninth Circuit

based its ESA § 7 decisions, in part, on its policy view that a

general rule requiring consultation would discourage commu-

nications that may ultimately benefit listed species, that its

defense of those claims must have actually conferred some

benefit on these species. But Pacific Lumber failed to produce

any evidence that its discussions with the U.S. Fish and

Wildlife Service in this case actually furthered the purposes

of the ESA. Indeed, the only evidence on this question ts that

Pacific Lumber’s salvage logging conducted after the prelimi

nary injunction was dissolved harmed marbled murrelets and

their habitat

In short, the tact that there may be policy reasons sup

porting the Ninth Circuit's holding that section 7 of the ESA

does not require formal consultation when the Service gives

advice to private landowners does not mean that the Court can

presume that appheation of that rule in all circumstances wall

serve the goals of the ESA. If Pacitie Lumber’s proposed

standard applies, evidence of “substantial contributron™ ts

required and Pacitic Lumber produced no such evidence

Therefore, this petition does not present a “live” controversy,

because the District Court already decided that Pacific Lum

ber did not meet its own preferred standard tor recovering

fees

IV. CONCLUSION

Pacific Lumber has presented no reason, much less any

compelling reason, for this Court to revisit the well-estab

lished standard that prevailing defendants must show that

citizen plaintiffs acted frivolously or unreasonably betore

such defendants may recover attorney tees under federal envi

ronmental statutes such as the Endangered Species Act

Respondent EPIC respectfully requests that the Court deny

Pacific Lumber’s petition tor a writ of certoran

Respectfully submitted,

Tromtas N. Lures

Counsel of Record

Environmental Protection

Information Center

One Market Plaza

Steuart Tower, loth Floot

San Francisco, CA 94105

(415) 777-S600

Counsel for Respondent

Environmental Protection

Information Center, Inc

Dated: December 6, 1999

App. |

APPENDIX J

EXHUBIT 12

[LOGO

bHE PACIFIC LUMBER COMPANY

PO. Box 37 Scotia, Ca 95565 (707) 764-2222

September 1, 1995

Nis. Low Kautman

Forest Practice Inspector

Cahtornia Department of Forestry

and Fire Protection

Humboldt / Del Norte Ranger Unit

LIS So. Fortuna Blvd

Fortuna, CA 95540

Dear MIs) Rautman:

Kk: Operations Pursuant to l4 CCR 1038(b)

the Pacitic Lumber Company (PL), acting itself as

licensed timber operator or through independent sub-

contractors acting as licensed timber operator, ts planning

to commence operations on exemption notice

1-O5-08eHIUM on behalf of Salmon Creek Corporation,

the Landowner. As vou recall, operations under this

exemption notice have been subjected to consultation

with USB&W and CDF&G regarding mitigation of

impacts to certain species of wildlife listed under the

State and/or Federal Endangered Species Acts. One ot

the limitations imposed limited the season of operation in

certain timber types to a period between September 15

and April I. PL. intends to commence operations some-

time shortly atter September 15, 1995.

App

With ayreement of the landowner and as a result) ot

consultations required by law to assure protection ot

listed species, operations conducted under this exemp

tron notice are limited by certarn mitiyations mtended to

assure that noe “take of listed spectes occurs. These lim

tations are documented: im oan exchange of correspon

dence between the waldiite agencies and PL beginning

With a joint letter trom the agencies to PL, dated April te,

IYO tollowed by a detter trom PR back to the agencies

seehking, Claritrcation, dated May 3. 1995) and tinally con

cluding wath oa clarttreation letter trom the agencies to Ph,

dated July PS 1995) ATL operations will be conducted in

stort compliance with the terms of these letters and: all

applroable torest practtee rules

\t the current tume PRoais planning operations utilizing

both yvround based conventional yvarding systems and

Heheopter varding systems. With regard to the latter,

LSESW and CDOR&G, have clarmtied a statement ino the

\prik 12) 1895 detter by stating that any restriction on

heloopter operations apples only cortlion the marbled tue

revel Dreedoiy season, whieh ends September 15 (luly 18,

IYO letter, po do atem EH) Tn conversation with Mr Pha

Detrich of USEXW. Tspecitically asked it helicopter yard

Ing atter the seasonal restriction had passed would be

permitted and he acknowledged that such operations

were not prohibited (personal conversation wath Phal

Detrich)

Lhough not required by law, because of the sensitivity of

this matter, Lwrite to vou at this early date to give your

agency and the wildlite agencies copied with this letter

notice of Pls intent to commence operations, providing

ddequate {ime for any pre operation discussions o1

)

App. 3

Inspections, and so that there is a clear understanding

between the operator and the agencies. Task that you or

any other agency representative contact me reyarding,

any discussion or inspections that any agency thinks

appropriate prror to, during or atter commencement of

operations

Sincerely,

bhiks PACTEIC LUMBER

COMPANY

s/ Thomas M. Herman

PHOMAS M. HERMAN

Resource Manayet

Enels

rar Phil Detrich, USEFAaW ;

Mark Stopher, CDEC, ;

App 4

APPENDIX K

PNHIBIT 19

Memorandum

March 8S. 19%

lo Mr Thomas Po Ostpowich

Deputy Chiet, Forest Practice

Cahtornia Department of Porestry

and Fire Protection

Coast Cascade Region, Resource Management

Post Ottice Bow oO

Santa Rosa, Caltornia 5402

bron Department of Fish and Game Reson |

bOL Locust Street. Redding, Calttornia 9800

Subject Heheopter Yarding, From Ocoupired [sic] Mar

bled Murrelet Habitat on Previously Unentered

Old -Carowth Redwood Stands

Following, are the results of an evaluation performed

by the Department of Fish and Game im response to

proposed hehcopter varding, of down loys trom: previ

ously unentered old-yrowth stands Phe subject stands

are those owned by the Salmon Creek Corporation and

Ihe Pocitie Lumber Company (PALCO) and the loysiny,

proposed rs rm luded under exemption notice

LOS OSeHIEM. and other exemptions These comments

apply only to those old growth redwood stands which

have been surveyed by PALCO (or ther contractors) and

where observations have been noted indicating, that mat

bled murrelets Gisted as endangered under the Calitornia

Pndangered Species Act) are present in these stands o1

that these stands are “occupred” by marbled murrelets

Phese comments are intended to supplement our letters

App y

ot April 12, 1995 and July TS, 1995, with respect to timber

harvest exemption operations proposed by PALO)

Ihe Department is providing, these comments to the

Department of Porestry and bire Protection (CDb) an

applieation to California Forest Practice Rules) Section

1O38(b) which specities conditions under which timber

harvest activities are exempt from the requirement for

preparation of a timber harvest plan Spectieally, thas

evaluation pertarns to the application of « oncdition Section

LO3S(D)7) which states, No known sites or rare, threat

ened or endangered plants or animals wall be disturbed:

threatened or Camayed

The Department met with PAT CO representatives on

at deast emht occastons during, 1995 to discuss and/or

treld evaluate old) growth redwood stands where exemp

trata Lersryratyys either boas occurred) or as proposed These

dates include January P33. Pebruary 22, March and 22

April 19. May 3) August 30 and September 5 On several

of these occasions the effort was specitically to evaltate

old prowth redwood stands where exemption loyyiny,

using a helicopter is proposed. During the treld visits the

stand’s trees, canopy closure, topoyraphy and: logs tat

reted tor removal were mspected We discussed) the

means by which a heleopter would remove downed loys,

potential damaye to the canopy and standing, trees and

procedures which might mitigate adverse impacts

Department biologists have also recently observed

several hehcopter varding, operations on the BL Dorado,

lorvabe and Sin Rivers natronal forests. Helicopters such

as the Chinook 234, Boeiny 107 and Huey UES were

observed removing logs trom mixed confer and Douglas

App 6

tir stands where selection/salvage and thinning harvest

methods were utilized. While observing these helicopter

Varding operations several concerns were noted relevant

to the exemption logging proposed by PALCQO. The prin

ciple [sic] concerns involve the effects of rotor wash on

trees directly below and in the immediate vicinity

\nother concern was that of direct damage to standing

trees and canopy as logs are titted and removed

Specitic observations include

1 In all cases the tops of trees directly below and in the

near proximity were whipped abruptly and continu

ously while the hehcopter was lowering the tay line,

the tag line was being attached to the cabled logs and

while logs were being litted

Small branches, leaves, cones and debris trom. the

anopy were blown to the ground as the helicopter

hovered over each site and while logs were lifted

Some ot the talliang debris was generated when indi

vidual logs, while being hosted. struck and broke oft

portions (branches and bark) of standing trees. Some

of the debris (small branches, needles, dutt) appeared

to be a direct result of the downward air movement

trom the helicopter rotor blowing debris out of the

trees and/or torcing debris oft the ground into the air

In most instances the rotor wash appeared to pene

trate the canopy, attect branches for the tull length ot

the trees and disturb soil and debris on the ground

under and near the hovering helicopter. This) was

observed with a tay line up to 250 teet in length

lhese observations are of concern because murrelets

principally mest ino the upper one-third to one-halt of

forminant trees mm the stand. Murrelets use natural struc

ture and

ind elements an the Canopy tor ats nest and tor

App. 7

cryptic protection. These structures and elements include

plattorms such as debris piles and needle accumulations

for nests, and small branches that function as screening

and protective cover. During the observed helicopter

operations these smaller, and apparently tragile elements

in the canopy appeared to be mobilized by the rotor

wash. These elements were also physically damaged by

the logs being lifted up and through the remaining can-

opy. These impacts are likely to reduce the suitability of

the stand tor murrelets in subsequent nesting seasons.

Itis apparent to the Department that helicopter yard-

inyy to remove downed logs from a relatively closed can-

Opy, old-growth redwood stand has a high likelihood otf

disturbing and/or damaging some of the critical elements

that make individual trees viable as a murrelet nest site,

According, to information provided by PALCO there may

be several log removals from each acre and many hun-

dreds in each occupied murrelet stand Phe cumulative

effect will likely be that many of the requisite nest ele-

ments tor murrelets will be knocked out or blown out ot

the standing trees. If this occurs the ability of the stand to

function for murrelet nesting will be substantively

reduced. Theretore, the Department concludes that

PALCO’s proposed operation will, with a high degree ot

probability, disturb, threatea or damage known sites of

threatened or endangered animals

Phe Department’s conclusion in this matter ts based

upon our assessment of avatlable information on murre

let nesting requirements and observations ot the effects of

rotor wash and physical damage to standing, trees hese

eftects are likely to disturb, threaten or damage essential

habitat characteristics

App sS

Although the described observations provide sutt

Gent basis tor reaching this conclusion, some site-specith

uncertamnty remains. The Department was not able to tind

and observe a helicopter varding, operation identical to

that proposed by PALCO In tact. hehcopter pilots inter

viewed by the Department opined that there is mo closely

comparable precedent tor the type of operation proposed

by PALCO. In lyht of this. the Department is walling, to

participate wath ¢ DF and PALC QO in turther investiga

trons to more detinitively determine whether the subject

proposal would likely disturb, threaten of damaye known

murrelet sites

\bsent a representative demonstration to the con

trary, the Department's opinion ts that the proposed heli

copter varding activities wall hhely disturb or damage

known sites of threatened or endangered species

It vou wash te discuss this matter further, please

contact Region | Environmental Services Supervisor Mr

Mark Stopher at (Yo) 225-2275 (¢ ALNET 442-2275)

S Mark Stopher

tor Richard |. Elhott

Regional Manager

CA see attached list

App YQ

APPENDIX I

Ip TI] IN TH NETED STATES DISERICT COURT

FOR THE NORTHERN DISERICT OF CALIFORNIA

MARBLED? MURRELE I

ul al

Plarntitts

BRLECE BABBIETL ct

1 tendants

Tages | through YS) inclusive

DEPOSTTION OF KENNEPEL HOPPSMEAN

March 22, 1996

VOLUME I

REPORTED BY

ANNETTE M. ROCCA, CSR NO) Sif

CERTIFIED COPY

{ |

if ¢ () ware ( ( ) ( roo? t thys

\ ust MITT evevtyl ti ert hre tT t oOpter 1

hy Opel tr LT Vcd aa t t nypt 1 e { al nwt

th fake YY el 1a Feit 1aor thre tened pre it

\n 1 | se tine ora tak hye t st t? j }

App 10

\ | understand. We discussed it in terms of there

being potential for “take

2 Did you have an opinion as to whether I'm

talking about you personally, did you heve on opinion of

your own as to whether it would be likely or very likely

to take

\ Yes | did

MIRO KEMP Object to the form of the question,

its compound

MR LIPDI Det me rephrase it

() Did you have an OPINION as to whether the hel

opter varding operations of exemption OdS6 would be

lbhely to “take” an endangered or threatened species?

() tnd what was your opinion?

Ihatat would be Ikely to “take

() \nd which threatened or endangered

[p> do] Was your opinion that helicopter varding

would be Likely to “take” marbled murrelets an opinion

firected only to helicopter operations that) were con

fucted wathin the marbled murrelet breeding season, or

Your Opinion broader than that?

\ My opinion was that at any time during the

breeding season or not, that helicopter use as proposed

ould resulton “take” ot marbled murrelets

App. 11

QO. Was your opinion that helicopter use would be

likely to “take” marbled murrelets restricted to helicopter

use over murrelet nesting habitat or the surrounding one

quarter mile buffer that ts less than 500 feet above the

treetops of the nearest old growth stand?

And that’s a quote from page 3 of Exhibit 11, the July

ISth letter, paragraph Ff.

A. Yes, but for a different reason than what this was

written

QO. Can you explain that to me?

A. This restriction refers to an avoidance of notse

disturbances, disruption of the central breeding behav-

iors, and my concern is with actual habitat loss. | agreed

with this, but my opinion on August 30th was not related

to nowe disturbances

App. 12

APPENDIX M

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MARBLED MURRELET,

et al.,

, NJ ‘05.29 .

Plaintiffs, No. C-95-3261 LCB

V3.

BRUCE BABBITT, et al.

Detendants.

Pages 1 through 150, inclusive.

DEPOSITION OF SALVADOR JOHN CHINNICT

July 9, 1996

REPORTED BY:

ANNETTE M. ROCCA, CSR NO. 8067

CERTIFIED COPY

[p. 90] EXAMINATION BY MR. LIPPE (Resumed)

MR. LIPPE: Back on the record.

QO. Was there a meeting with CDF and Pacitic Lum-

ber and other agencies, possibly on June 27th, about

helicopter varding as part of exemption 086?

A. What vear?

App. 13

Q). ‘YU,

A. I believe there was a meeting in Scotia, yes, but |

did not attend.

QO. Do you know if Pacific Lumber is still intending

to do helicopter yarding as part of exemption 056?

A. 1 don’t know.

MR. KEMP: [I can save you time on that.

MR. LIPPE: Okay

MR. KEMP: Pacific Lumber takes the position

that as long as CDF finds that helicopter varding, would

be a violation of 1038, whatever it is, Which is what CDE

presently believes, PALCO will not nor attempt to hel

copter loy.

PALCO reserves the right to try to convince CDF and

Fish and Game that helicopter logging, would not be

injurious to habitat. But [p. 91] until that takes place,

there is some sort of demonstration and CDF concurs,

PALCO will not attempt to helicopter log,

And further, just to get it out of this case, should

PALCO decide to have some kind of attempt to convince

CDF to change its mind, it will make a public statement

to vou to that eftect.

MR. LIPPE: So if you don’t mind me following

up on that. Actually, | want to ask you a couple ot

questions, as long as we're doing, this.

Does Pacific Lumber have plans now in the works to

convince CDF that it won’t harm these species.

App. 14

MR. KEMP: No.

MR. LIPPE: Okay. Thank you. I appreciate that.

©. What were you told about the nature of the

exemption harvest operations to take place under O86,

when you were asked about advice on how to avoid a

take of murrelets?

A. To the best that I can recall, | was told that we

would be interested in removing dead downed material,

and maybe some dying material.

©. Anything else, or is that it?

A That’s all | can remember

App. 15

APPENDIX N

[p. 1] IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARBLED MURRELET > CIVIL ACTION

(Brachyramphus Marmoratus), NO

NORTHERN SPOTTED OWL C-95-3261 LCB

(Strix occidentalis caurina);

ENVIRONMENTAL PROTEC TION :

INFORMATION CENTER, INC.

BRUCE BABBITT, Secretary,

Department of the Interior; JOHN -

TURNER, Director, United States

Fish and Wildlife Service;

MICHAEL SPEAR, Region 1

Director, United States Fish &

Wildlife Service; U.S. FISH &

WILDLIFE SERVICE, THE

PACIFIC LUMBER COMPANY, a

Delaware Corporation; SCOTIA

PACIFIC HOLDING COMPANY, a :

Delaware Corporation; SALMON

CREEK CORPORATION; a

Delaware Corporation

Philadelphia, Pa.

October 2, 1996

BEFORE HON. LOUIS C. BECHTLE, CH. J. Emeritus

HEARING

* * *

[p. 40] MS. KOHLER: The appropriate person

would be John Turner, who is Acting Director.

SO ORS <A TA ARATE

RS ACUI EPR REE INS ATONE PUD re to

App. 16

THE COURT: That happens. With regard to federal

ayencies, if the Court’s ruling requires a substitution, that

will be made. We note these remarks with affection and

admiration, that she worked with the federal govern:

ment.

EPIC asks the Court to enjoin the Lumber Companies

from harvesting “dead, dying and diseased trees” on tts

200,000 acre property in Humboldt County, California.

fhe Lumber Companies have obtained “exemption

notices” from the California Department of Forestry and

Fire Protection, referred to as the CDF, to conduct such

operations. The exemption notices at issue in this case,

are No. 1-95EX-086 HUM. No. 1-94EX-1110 H1QUM, mean-

ing Humbolt County and its replacement, that is the last

exemption number 1-95-546 HUM and No. 1-94EX-1357

HUM, which was replaced in 1995 by 1-95 Ex-753 HUM.

We will refer to these exemption notices and the timber

operations relating to them as the “Exemption Harvests.”

Specitically, EPIC contends that removing standing

and fallen trees pursuant to the Exemption Harvest

notices will cause a “take” of the Marbled [p. 41] Murrelet

in violation of Section 9 of the Endangered Species Act,

16 United States Code, Section 1538(a), and regulations

promulgated thereunder. *

Section 9 of the Endangered Species Act does pro-

hibit any person from “taking” and that we all Know in

this courtroom and those reading this understand it has a

very special meaning. There has been a lot of litigation

about it. There have been many appellate rulings by the

Supreme Court. But, in any event, that section does pre-

vent the “taking” within the United states of species of

App. 17

wildlife listed as “endangered.” See 16 United States

Code, Section 1538(a)(a)(B). Federal regulations have

applied this prohibition to species listed as “threatened.”

50 Code of federal Regulations, 17.21(a), 17.31 (a). Under

the statute, the term “take” means “to harass, harm,

pursue, hunt shoot, wound, kill, trap, capture, or collect,

or to attempt to engage in any such conduct.” 50 United

States Code, Section 1532 subsection (19). There has been

a number of court decisions that have also expounded

upon the statutory words and the reyulations that have

been enacted and applied by the Service to those statu-

tory terms.

EPIC argues that logging under the [p. 42] Exemption

Harvests notices will “harass” and “harm” the Marbled

Murrelet. The Department of the Interior has detined

these terms as follows.

Harass “means an intentional or negliyent act or

omission which creates the hkelihood of injury to wildlite

by annoying it to such an extent as to significantly dis-

rupt normal behavioral patterns which include, but they

are not limited to, breeding, feeding or sheltering.” 50

Code oft Federal Regulations 17.3.

That same regulation makes reference to harm

“means an act which actually kills or injures wildlite

Such act may include significant habitat modification or

degradation where it actually kills injures [sic] wildlife by

Significantly impairing essential behavioral patterns,

including, breeding, feeding or sheltering,

The United States Court of Appeals for the Ninth

Circuit has held that a party is entitled to injunctive reliet

under section 9 if tt proves a “reasonably certain threat of

App. 18

Imminent harm to a protected species.” See Marbled Mur-

relet v. Babbitt, 83 F.3d 1060 at 1066 (9th Cir. 1966). Now

the standard for temporary restraining order that applies

here

[p. 43] It is in accordance with the Ninth Circuit's

precedent. In the Ninth Circuit, a party ts entitled to

preliminary injunctive relief when it demonstrates either

(1) a likelihood of success on the merits and the possi-

bility of irreparable injury; or (2) sufficiently serious

questions going to the merits to make them a fair ground

tor trial, and the balance of hardships tips sharply in

tavor of the party seeking relief. Marbled Murrelet. v.

Babbitt, 83 F3d 1068 at 1073.

In Endangered Species Act cases, the balance of hard-

ships and the public interest tip heavily in favor of the

endangered species. That's cited in the previous case, 83

fd. 1068. EPIC. to that extent, has satisfied its burden ot

proot and is entitled to a temporary restraming order = 1f

it has raised sutticiently serious questions going to the

merits of whether a section 9 violation will occur. If EPIC

has raised no such serious questions, the Court must

deny its motion

Ihe Court tinds the following, facts:

Ihe Marbled Murrelet has its habitat in old-growth

torests on the Lumber Companies’ property. The bird

nests in old-growth forests by laving a single egg on a

large, tlat surtace. [p. 44] Murrelets rely on dense trees

stands to torm a “canopy” that provides cover to their

potential nest plattorms

App. 19

The Lumber Companies qualified for three “exemp-

tion notices” to harvest “dead, dying, and diseased trees”

under California’s timber harvesting regulations. Shortly

thereafter, the United States Fish and Wildlife Service,

which I refer to as the “Service” and CDF became con-

cerned that the Exemption Harvests that would result

from the notices might unlawfully cause a take of the

Marbled Murrelet. To this end, they imposed conditions

on the Lumber Companies’ ability to conduct the Exemp-

tion Harvests. These conditions are set forth in the agen-

cies’ letters dated April 12th, 1995, and July 18th, 1995.

Those letters are in evidence in this case, and to the

extent that the record shows that they are not there, they

are received into evidence to become part of the record in

this case.

The Lumber Companies have agreed to comply with

the conditions as they pertorm the Exemption Harvests,

which collectively cover the entire range of the Lumber

Companies’ property. These conditions were additional to

the requirements contained in California’s Forest Practice

Rules.

[p. 45] The Lumber Companies propose to harvest

two broad categories of timber. The first category

involves the cutting down of standing trees in virgin, old-

growth forests and residual, old-growth forests. The sec-

ond category involves the removal of down logs, that is,

trees that have fallen and are on the ground.

As to standing trees in virgin, old-growth stands, the

Court tinds that the Lumber Companies, through its Vice

President and Resource Manager, Thomas M. Herman,

have materially represented to the Court, under penalty

App. 20

of perjury, that they will not cut a single standing tree in

such stands unless the Service and CDF determine, as set

forth in those letters that are exhibits, there is a procedure

in there to do that, that the harvest would not affect

Murrelets or their habitat or interfere with other trees

constituting suitable habitat for Murrelets. See the Her-

man declaration at paragraph four. The Court incorpo-

rates by reference that declaration, which ts also received

into evidence in this case. Indeed, the Court will receive

into evidence all of the declarations that have been filed

by both sides. We have — we had considerable argument

about those yesterday and there’s no question they [p. 46]

the Court is considering those as exhibits offered to the

Court.

As the standing trees in residual old-growth stands,

Mr. Herman has declared under oath that operations in

such stands are subject to again the inquiry involving the

Service and CDF. And this process is set forth in para-

graph 6 to 9, inclusive, of his declaration.

In regard to down logs in all forest stands, the Lum-

ber Companies may remove downed logs using existing

roads and skid trails between September 15th and April

Ist. Removal of such timber may not damage or cause the

eventual removal of standing timber, that is in the pro-

cess of carrying out those exemption certificates, harvest-

ing operations, damaged, or eventual removal of

standing timber is to be avoided and it is prohibited.

The issue before the Court, based upon these facts is

whether EPIC has presented serious questions going to

the merits of whether logging pursuant to the Exemption

Harvests will cause a take of the Marbled Murrelet in

App. 21

violation of Section 9 of the Endangered Species Act and

its accompanying regulations.

[p. 47] First I will discuss the foresting of standing

timber and then discuss the issue of yarding down tim

ber.

In their joint letters of April 12th and July 18th, 1995,

the Service and CDF imposed significant conditions on

the Lumber Companies’ ability to conduct the Exemption

Harvests. The Court described these conditions a few

moments ayo.

Phe letters spell out in considerable detail the condi

tions that were required by the agencies as part of the

exemption notice, if you will, consultation that they had

with the Lumber Companies. The Lumber Companies

must comply with these conditions or they may not har

vest “dead, dying or diseased trees.”

The Service and CDF will enforce the conditions and

are required by law to do so. The agencies have sufficient

resources and personnel to do so adequately. No persua-

sive evidence suggests that the agencies will not or can

not perform their duties.

If the Lumber Companies comply with the condi

tions, the Service and CDF have concluded that harvest-

ing of “dead, dying and diseased trees” pursuant to the

exemption will not cause a “take” of [p. 48] the Marbled

Murrelet. EPIC has not provided sufficient evidence to

convince the Court that such harvesting, will probably

cause a take.

For these reasons, EPIC has not raised a serious

question concerning further proceedings on the issue of

App. 22

whether harvesting standing timber pursuant to the

Exemption Harvest notice will cause a “take” of the Mar-

bled Murrelet in violation of Section 9 of the Endangered

Species Act.

[his finding does not close the book on the issue,

however. The Court notes that the Lumber Companies, in

a separate feature of this litigation, argued that the April

12th and July 18th letters are merely advice, and are not

mandatory requirements. Indeed, they persuaded the

Ninth Circuit that this was the case and their position

here is to some extent contrary to that.

loday’s ruling, therefore, will not be separated from

the position the Lumber Companies presented to the

Court by Mr. Herman’s declaration and the Lumber Com-

panies’ counsel assurance ot the same in the name of his

clients. Both asserted that in accordance with the joint

conditions imposed by the Service and CDF, the Lumber

Companies will not cut any standing timber - either in

virgin or [p. 49] residual old-growth stands - without an

agency determination as set torth in Mr. Herman’s decla-

ration, which in turn relied upon the provisions of the

letters that the Court has received into evidence, and has

referred to earlier in its April 12th, 1995 and July 18th,

1995 letters.

The Court expects the Lumber Companies to follow

these requirements strictly, as they represented that they

will do. Indeed, the Court is expressly basing its ruling,

based on the assumption that these representations will

be honored.

Because Mr. Herman’s declaration and counsel's

courtroom assertions constitutes the linchpin of the

App. 23

Court’s ruling, the Court will require the Lumber Com-

panies to notify the Court and EPIC in writing within 10

days of any change in their position on the issues embod-

ied in those letters and Mr. Herman’s declaration in para-

graph six through nine inclusive. The Lumber Companies

have agreed to comply with this notice demand, accord-

ing to Mr. Kemp’s representation to the Court today. That

will allow EPIC ten days to consider what action, if any, it

is entitled to or will decide to take in the event there is

any change.

As to the yarding of down logs, the Lumber [p. 50]

Companies, by their declarations, also have asserted to

the Court that the removal of downed iogs will be done

without damage to standing trees causing premature

death or destruction of large limbs that would be more

than 100 feet above the ground. This is Mr. Herman’s

declaration in paragraph 15.

EPIC has submitted affidavits to support its theory

that removing downed timber would probably cause

damage to standing trees that could cause a take of the

Marbled Murrelet. It argued that the dragging of fallen

logs could kill or damage any trees or cause accumulated

dead biotic material to fall from the canopy. There are a

number of other arguments presented in the declarations

by EPIC in this regard. EPIC reasons that this would

reduce the number of platforms available for nesting and

would probably eliminate hiding coverage and allow

predators easier access to Marbled Murrelet nests. In that

regard, a review of the characteristics and the behavior of

these birds that has been received in other proceedings,

tells us that these birds are very secretive. They fly very

quickly and normally at night. They are very, apparently

App. 24

very conscious, indeed their habits show they are aware

of the need [p. 51] to avoid predation and they therefore

seek a high canopy, they seek all of those things that

make them fairly characterized as secretive, regarding

their activities, especially involving breeding.

The evidence offered by EPIC, having to do with the

damage to the habitat features associated with the Lum-

ber Companies’ property is set forth in the declaration of

Robert J. Hrubes, H-R-U-B-E-S and Kim Nelson.

The Court finds that EPIC has not met its burden of

proof on this issue. The Lumber Companies have stated

that their yarding operations do not cause such damage.

EPIC’s declarations appear to contain, in fairness to their

declarants, their best attempts at proving that the

removal of down timber will adversely aftect the Murre-

let’s behavioral patterns. The evidence, however, consists

of conditional facts that are dependent upon other condi-

tional facts. In most cases, in some, on an additional level

of conditional facts and suppositions. The Court notes,

however, that it believes that EPIC’s arguments and their

declarations have been set forth in good faith and in a

professional manner, but that they simply do not support

a finding that the removal of down [p. 52] timber in old-

growth stands will probably cause collateral damage to

standing trees, and that such damage will probably “sig-

nificantly disrupt normal behavioral patterns” or “signifi-

cantly impair essential behavioral patterns” of the

Murrelet.

For this reason, EPIC has not raised a serious ques-

tion warranting further proceedings on the issue of

App. 25

whether harvesting fallen timber pursuant to the Exemp-

tion Notice Harvests will “harm” or “harass” the Marbled

Murrelet and cause a “take” of the species in violation of

Section 9 of the Endangered Species Act.

The Endangered Species Act, the regulations promul-

gated thereunder, and the case law interpreting those

provisions have set forth a single, overarching principle;

the courts must not take chances with the survival of a

listed species. The Court has followed that congressional

directive in the past, and it believes it is doing so here.

The Court tinds that the exemption notices and the

harvest that will result trom them will not cause a “take”

of the Marbled Murrelet as long as the Lumber Com-

panies comply with the requirements of the Service and

CDF, as the Court has referred to and as are included in

the declarations and the [p. 53] letters that have been

reterred to and the representations made here in Court as

to how they fit into the harvesting program of the Lum-

ber Companies. If the Lumber Companies do not comply,

the issue, of course, will be revisited by the Court. The

Court intends as best it can to fulfill the congressional

mandate and protect the Marbled Murrelet in this case

and the traditional rights of all parties involved in this

case as it would in respect to any endangered species that

would be the topic of a claim such as has been made here.

For the reasons set forth above, the Court finds EPIC

did not raise sufficiently serious questions going to the

merits of whether the logging pursuant to the Exemption

Notice Harvests will cause a “take” of the Marbled Mur-

relet in violation of Section 9 of the Endangered Species

App. 26

nd regulations promulgated thereunder. Accord-

the Court will deny EPIC’s motion for a temporary

raining order.

The Court will enter an appropriate order and coun-

cel can receive a copy of this transcript from the court

reporter. I will have Mr. Cirino give the parties a copy of

the written order that I signed today. It is in keeping with

a decision that [p. 54] the Court just read.

All right, counsel, I appreciate your coming to Phila-

delphia in regard to this matter. I won't go into that again

other than we hope that it is not necessary to do that

again, if it is, it would only be for good cause, which was

the circumstance in this instance.

Anything further?

MR. LIPPE: One point of clarification, your

Honor.

THE COURT: Yes.

MR. LIPPE: You indicated that Pacific Lumber

was to give notice to the Court and EPIC within ten days

of any change in operations or change in procedures. |

wondered if you meant prior to or 10 days prior to any

change?

THE COURT: It is implicit and Mr. Kemp ts

nodding he agrees, ten days — the opinion should be

amended to say ten days prior notice to any change in the

policies.

All right. Thank you for coming.

(The Court will adjourn at 5 of 12.

App. 27

(Hearing adjourned at 11:55 a.m.)

[p. 55] I, SIDNEY ROTHSCHILD, being a United

States Court Reporter, United States District Court, east-

ern District of Pennsylvania, do hereby certify that I was

authorized to and did report in shorthand the above and

foregoing proceedings, and that thereafter my shorthand

notes were transcribed under my supervision, and that

the foregoing pages contain a true and correct transcrip-

tion of my shorthand notes taken therein.

Done and signed this 8th day of October, 1996, in the

City of Philadelphia, County of Philadelphia, State of

Pennsylvania.

/s/ Sidney S. Rothschild

SIDNEY S. ROTHSCHILD

U.S. Court Reporters

United States District Court

Eastern District of Pennsylvania

App 2k

APPENDIX O

AUDIT -------------------TRAIL AUDIT -- I RAITI

AUDIT ----------------TRAII AUDII [KAI

AUDII --- ---TRATI AUDII [RAI

AUDIT ---------------- TRAIT AUDII [RAI

AUDIT ------ rRAIL AUDII IRATI

NO IQ) BI MAILED

NOT IQ) BI MAILED

Place this in the TMP file as the audit trail of computer

venerated form letters

Notice Number 1-96-784-EX/HUM

Inspection Letter dated October O09, 1996

Person contacted concerning

limber Operation Mike Niles

Inspec tion Date: October 09, 1996 In spection Number: |

Hlegible

siynature

Hugh Scanlon, Forester |

Staff Forester, RPE # 2456

For J. R. Me ¢ ollister, Unit Chiet

Ca. Dept of Forestry & Fire Prot

118 Fortuna Blvd. Fortuna, Ca 95>4!

(707) 725-4413

VIOLATIONS AND COMMENTS

ACTIVE INSPECTION VIOLATION NOTED

In the Lawrence ( reek fell Creek area Ope rations were

being conducted in identified marbled murrelet habitat

Standiny trees had been damaved within this area a

App. 29

prohibited by the terms of the marbled murrelet consulta

tion. These trees extended at least 50 to 80 feet into the

canopy and are now on the ground. Failure to comply

with the terms of the consultation 1s a VIOLATION of 14

CCR 1038(b)(7), which requires that exempt Operations

not result in damaye, threat, or disturbance to known

ites of rare, threatened or endangered plants or animals

\ citation and stop work order have been issued for this

Violation.

\UDIT ---- PRAIL AUDI KAT

\UDIT ------- ---TRATI AUDII LKAIL.

\UDIT ------------- TRAIL AUDII PRAII

AUDIT ----------------TRAIL AUDII LKATI

AUDIT -------------------TRAIL AUDIT PRAT

NOI IC) BE. MAILED

NO] IC) Bt: MAILED

Place this in the TMP file as the audit trail of computer

venerated form letters

-otice Number 1-96-784-EX/HUM

Inspection Letter dated October 09, 1996

Person contacted concerning

limber Operation: Mike Niles

Inspection Date: October 09, 1996 — Inspection Number: |

Last of Addresses

Scotia Pacific

Holding Company

PO. Box 712

Scotia, CA 95565

App. 30

200009900001) nlator tttteeteret

The Pacitic Lumber

Company

P.O. Box 37

Scotia, CA 95565

App. 31

APPENDIX P

[p. 1] IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE LOUIS C. BECHTLE, JUDGE

MARBLED MURRELET,

BS AL,

PLAINTIFFS,

VS.

BRUCE BABBITT,

Et At.

DEFENDANTS.

NO. C 95-3261 LCB

)

SAN FRANCISCO, CALIFORNIA

TUESDAY, OCTOBER 22, 1996

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFF:

LAW OFFICES OF THOMAS N.

LIPPE

ONE MARKET PLAZA

STEUART STREET TOWER,

16TH FLOOR

SAN FRANCISCO, CA 94105

BY: THOMAS N. LIPPE, ESQ.

LAW OFFICES OF SHARON E.

DUGGAN

1032 IRVING STREET, SUITE 218

SAN FRANCISCO, CA 94122

BY: SHARON E. DUGGAN, ESQ.

(APPEARANCES CONTINUED ON FOLLOWING PAGE)

REPORTED BY: LEO T. MANKIEWICZ, CSR, RPR

OFFICIAL REPORTER, USDC

App. 32

* * *

[p. 19] SCANLON - DIRECT\LIPPE

THE WITNESS: YES, YOUR HONOR.

MR. LIPPE: WE ACTUALLY HAVE ANOTHER

MAP. WHICH IS A MUCH LARGER SCALE, WHICH

MIGHT BE BETTER.

Q. IS THIS MAP EASIER FOR YOU TO DETER-

MINE WHERE IT WAS?

A. YES, IT Is.

THE COURT: IS THAT P-2, OR IS THAT SOME-

THING ELSE?

MR. LIPPE: THAT WOULD BE P-3, IF... WE

HAVE ANOTHER ONE COMING UP HERE.

(WHEREUPON, PLAINTIFFS’ EXHIBIT P-3 WAS

MARKED FOR IDENTIFICATION.)

THE COURT: WELL, LET’S DO THIS. LET'S

GET THE MARKING A LITTLE LATER. LET’S GET TO

WHAT HE SAW AND DID AND THOUGHT AND FELT

AND WHAT HE TESTIFIED TO. WE CAN DO ALL THIS

MARKING AT A RECESS

BY MR. LIPPE:

©. MR

THE COURT: THERE’S FIFTY-FIVE PEOPLE

HERE

BY MR. LIPPE:

Q. MR. SCANLON, WHAT WAS THE BASIS FOR

YOUR ISSUING OF A NOTICE OF VIOLATION TO

PACIFIC LUMBER COMPANY?

——

App. 33

A. THE BASIS OF THE VIOLATION WAS A PER-

CEIVED VIOLATION OF CALIFORNIA CODE OF REG-

ULATIONS TITLE 14, SECTION 1038(B), SUBSECTION

(7).

Q. AND SO WHAT DID PACIFIC LUMBER ACTU-

ALLY DO THAT YOU BELIEVE VIOLATED THAT

RULE? DID THEY CUT DOWN TREES THAT WERE [P.

20] STANDING, FOR INSTANCE?

A. WHAT PACIFIC LUMBER IS ALLEGED TO

HAVE DONE IN THAT CASE IS -

Q. CAN I JUST INTERRUPT YOU, PLEASE? I’M

NOT ASKING WHAT THEY WERE ALLEGED TO HAVE

DONE.

THE COURT: LET ME...

YOU NOTICED A VIOLATION, SOMETHING YOU

SAW?

THE WITNESS: YES, YOUR HONOR.

THE COURT: WHAT DID YOU SEE?

THE WITNESS: WHAT I SAW WAS A

NUMBER OF TREES THAT HAD BEEN KNOCKED

DOWN, WHICH APPEARED TO BE CONTRARY TO

THE TERMS OF THE CONSULTATION THAT WAS

DONE FOR THAT EXEMPTION.

THE COURT: ALL RIGHT.

BY MR. LIPPE:

Q. HOW MANY TREES WERE KNOCKED DOWN?

A. WE OBSERVED APPROXIMATELY SEVEN OR

SIX TREES THAT WERE KNOCKED DOWN OF ANY

SUBSTANTIAL SIZE.

Q. OKAY. HOW MANY TREES TOTAL WERE

KNOCKED DOWN, OF ANY SIZE WHATSOEVER?

App. 34

A. | HAVE NO ESTIMATE OF THE NUMBER OF

SEEDLINGS THAT WERE KNOCKED DOWN.

Q. OKAY. HOW TALL WERE - HOW TALL WAS

PHE TALLEST OF THE SIX OR SEVEN?

A. ESTIMATED AT 75 FEET.

QO. OKAY, HOW TALL WAS THE SHORTEST OF

THAT GROUP?

[P. 21] A. APPROXIMATELY 30 FEET.

QO. AND DID YOU REACH AN OPINION AS TO

WHETHER THOSE TREES WERE TREES THAT WERE

IMPORTANT FOR THE MARBLED MURRELET, AS FAR

AS ITS HABITAT IS CONCERNED?

MR. CARTER: OBJECTION, YOUR HONOR. |

DON'T -

THE COURT: WELL, IF HE SAYS NO, IT’S

NOT A PROBLEM, RIGHT?

DID YOU MAKE SOME DETERMINATION?

THE WITNESS: | DID NOT MAKE ANY SUCH

DETERMINATION.

THE COURT: SEE? NOT A PROBLEM.

BY MR. LIPPE:

QO. DID SOMEONE ELSE MAKE A DETERMINA-

PION AS TO WHETHER THE KNOCKING DOWN OF

THOSE TREES WOULD ADVERSELY AFFECT THE

MARBLED MURRELET?

A. I DON’T UNDERSTAND THE QUESTION.

THE COURT: WELL, LET’S JUST... YOU PER-

CEIVED THE VIOLATION, YOU SAW IT, AND YOU

TOOK SOME STEP TO RECORD A VIOLATION SOME-

WHERE. WHAT DID YOU DO?

App. 35

THE WITNESS: WHAT WAS DONE IS A

NOTICE OF VIOLATION WAS ISSUED TO THE COM-

PANY, AND A CITATION WAS ISSUED TO THE COM-

PANY.

THE COURT: OKAY, AND DID THAT VIOLA-

TION HAVE ANYTHING TO DO WITH THE FINDING

THAT THERE WAS AN ENDANGERMENT TO THE

HABITAT FOR THE MARBLED MURRELET, AS FAR AS

YOU KNOW?

THE WITNESS: I CAN’T SPEAK DIRECTLY TO

THAT, YOUR [P. 22] HONOR.

THE COURT: DO I TAKE IT OUR VIEW IS

THAT IT VIOLATED 14-1038(B)(7)?

THE WITNESS: YES.

THE COURT: MARBLED MURRELET OR NO

MARBLED MURRELET, THAT’S WHAT IT VIOLATED.

THE WITNESS: YES, YOUR HONOR.

THE COURT: ALL RIGHT, GO AHEAD.

BY MR. LIPPE:

Q. NOW, WHY WAS KNOCKING DOWN OF

THOSE STANDING TREES A VIOLATION IN TOUS

VIEW AT THAT TIME?

A. UNDER THE TERMS OF THE CONSULTATION

THAT HAD BEEN INCLUDED WITH THE EXEMPTION,

STANDING TREES WERE NOT TO BE DAMAGED.

Q. AND IS IT STILL YOUR VIEW THAT THE

KNOCKING DOWN OF STANDING TREES WOULD

CONSTITUTE A VIOLATION?

A. YES, IT IS.

OQ. WOULD THAT BE TRUE FOR STANDING

TREES OF ANY SIZE?

App. 36

A. NO, IT WOULD NOT.

Q. WHAT IS THE SIZE CRITERION THAT WOULD

BE THE CUTOFF, IF YOU WILL?

A. THE CUTOFF, IN MY MIND, WOULD COME

WITH TREES OF A HEIGHT WHERE YOU WERE

REACHING INTO THE CANOPY, WOULD BE THE PRI-

MARY CONCERN.

Yes.

THE COURT: WHAT’S YOUR UNDERSTAND-

ING OF THAT RANGE OF HEIGHT, OR THAT HEIGHT?

[P. 23] THE WITNESS: I DON’T HAVE A

DIRECT UNDERSTANDING OR A DIRECT FIGURE FOR

THAT, YOUR HONOR.

THE COURT: OVER 20 FEET?

THE WITNESS: IT COULD. IT COULD BE

OVER 30 FEET. IT COULD BE OVER A GREAT AREA,

DEPENDING.

THE COURT: AND THERE IS SOMEONE IN

YOUR DEPARTMENT THAT DOES HAVE THAT

UNDERSTANDING?

THE WITNESS: THAT WOULD BE DONE IN

CONSULTATION WITH THE DEPARTMENT OF FISH

AND GAME.

THE COURT: ALL RIGHT.

BY MR. LIPPE:

O. IS THERE ANY PLAN TO REACH THOSE

KINDS OF DETERMINATIONS IN CONSULTATION

WITH THE FISH AND WILDLIFE SERVICE AS WELL,

OR IS IT SOLELY THE DEPARTMENT OF FISH AND

GAME?

App. 37

A. I HAVE NO KNOWLEDGE OF THAT.

Q. OKAY. HAS ANYTHING CHANGED, IN YOUR

UNDERSTANDING, OF THE CONDITIONS THAT

APPLY WITH RESPECT TO THE KINDS OF STANDING

TREES THAT CAN BE KNOCKED DOWN WITHOUT

CAUSING A VIOLATION, SINCE YOU ISSUED THE

NOTICE OF VIOLATION OCTOBER 9TH?

A. NO, THAT HAS BEEN NO CHANGE, IN MY

UNDERSTANDING.

Q. OKAY, SO IN YOUR UNDERSTANDING THE

TREES THAT WERE KNOCKED DOWN OCTOBER 7TH,

IF YOU SAW THAT HAPPEN TODAY, THAT WOULD BE

A VIOLATION, IN YOUR VIEW?

A. YES, IT WOULD.

Q. OKAY. DO YOU HAVE AN UNDERSTANDING

AS TO WHY CDF WITHDREW

* + *

[p. 91] MARSHALL - DIRECT\LIPPE

L-U-C-K-E, WHO’S ASSISTANT DEPUTY DIRECTOR

FOR RESOURCE MANAGEMENT, WHO HAS INDI-

CATED TO ME THAT HE’S BEEN IN CONTACT WITH

THE CHIFF DEPUTY DIRECTOR IN THE DEPART-

MENT.

THE COURT: AND IS MR. LUCKE SOME-

WHAT OF A SUPERIOR TO YOU?

THE WITNESS: YES, HE IS.

THE COURT: THANK YOU.

BY MR. LIPPE:

Q. I’M SORRY, YOU SAID MR. LUCKE SAID HE

WAS THAT CONTACT WITH SOMEONE ELSE IN THE

DEPARTMENT?

Nitin

App. 38

=—

A. OUR CHIEF DEPUTY DIRECTOR, MR. JIM

BURROUGHS.

Q. OKAY, AND WHAT WERE THE INSTRUC-

TIONS THAT MR. LUCKE TRANSMITTED TO YOU?

A. WE’VE BEEN INSTRUCTED THAT WE ARE TO

MAKE A DAILY INSPECTION OF THE AREA OF THE

SUBJECT EXEMPTION UNTIL FURTHER NOTICE.

QO. OKAY. WERE ANY PARAMETERS PUTS ON

THE, “UNTIL FURTHER NOTICE” PART OF THAT, A

WEEK, TWO WEEKS, OR ANYTHING?

A. THERE WAS NO QUALIFIER BEYOND “UNTIL

FURTHER NOTICE.”

Q. OKAY, AND WERE YOU INVOLVED IN THE

DECISION TO ISSUE A NOTICE OF VIOLATION TO

PACIFIC LUMBER ON OCTOBER 9TH?

A. YES, I WAS.

Q. OKAY, AND IN YOUR OPINION, WHAT WAS

THE SUBSTANCE OF THE VIOLATION THAT THAT

NOTICE PERTAINS TO?

A. WE DISCUSSED WITH MR. KEN MOORE

WHEN HE CAME BACK FROM A [P. 92] SITE VISIT -

AND WHEN I SAY, “WE,” THAT MEANS MR. SCAN-

LON AND MYSELF AND MR. MOORE - ABOUT WHAT

HE HAD SEEN IN THE WAY OF SOME SMALL TREES

THAT HAD BEEN KNOCKED DOWN IN CONNECTION

WITH REMOVING A LARGE LOG. WE DISCUSSED

WHETHER, IN HIS BIOLOGICAL OPINION, THAT

WOULD BE A VIOLATION OF 1038(B)(7). HE INDI-

CATED HE THOUGH IT WAS.

QO. OKAY.

THE COURT: NOW, MR. MOORE, HE IS A

SUBORDINATE TO YOU.

App. 39

THE WITNESS: I’M NOT SURE HOW DFG IS

STAFFED, YOUR HONOR.

THE COURT: OH, I SEE. BUT IN ANY SENSE,

DOES HE SOMETIMES REPORT TO YOU, AS YOUR

AGENCIES WORK TOGETHER? HOW DOES THAT

WORK?

THE WITNESS: NO, HE WOULD REPORT TO

HIS DIRECT LINE SUPERVISOR IN THE DFG HIER-

ARCHY.

THE COURT: OKAY, AND WOULD THAT

THEN COME OVER - YOU’D LEARN IT THROUGH

THAT SAME -

THE WITNESS: WE COMMUNICATE AT VAR-

IOUS LEVELS. I WOULD BE MORE LIKELY PROBABLY

TO BE ON A PAR WITH MR. MARK STOPHER, WHO’S

HERE.

THE COURT: OH, ALL RIGHT. OKAY. THANK

YOU.

BY MR. LIPPE:

Q. WERE YOU INVOLVED IN THE DECISION TO

WITHDRAW THE MISDEMEANOR PROSECUTION

AGAINST PACIFIC LUMBER ON THE NOTICE [P. 93]

OF VIOLATION?

A. I WAS INVOLVED IN THE DISCUSSION.

Q. WHAT WAS THE REASON FOR DOING THAT?

A. AFTER FURTHER DISCUSSION WITH PER-

SONS IN THE DEPARTMENT, IT WAS DETERMINED

THAT AFTER THE STOP ORDER WHICH WAS ALSO

ISSUED AS PART OF WHAT HE HAD SEEN THERE,

AND AFTER THE MEETING WE HAD THE NEXT DAY

TO MAKE SURE THAT WE ALL HAD A COMMON

UNDERSTANDING OF WHAT COULD OR COULD NOT

App. 40

BE DONE AND WHERE IT COULD OR COULD NOT BE

DONE; WE DECIDED THAT IT WAS NOT WORTH PUR-

SUING AS A MISDEMEANOR PROSECUTION.

Q. OKAY. SO NO DECISION WAS MADE THAT, IN

FACT, NO VIOLATION HAD OCCURRED; IS THAT

CORRECT?

A. THAT’S CORRECT. WE STILL BELIEVE THAT A

VIOLATION DID OCCUR.

Q. AND I TAKE IT FROM YOUR TESTIMONY

THAT YOU ARE OF THE OPINION THAT PACIFIC

LUMBER IS NOT GOING TO DO IT AGAIN. IS THAT

WHAT YOU MEAN BY “IT’S NOT WORTH PURSU-

ING”?

A. WE BELIEVE THAT IN THE INTERESTS OF

JUSTICE, IT WOULD BE DIFFICULT TO PROVE, AND

IN A DIFFERENT CONTEXT, IN ANOTHER LOCATION,

IT WOULD NOT HAVE BEEN THE KIND OF THING

THAT WE WOULD HAVE WRITTEN A CITATION FOR.

Q. NOW, HOW LONG DO YOU HAVE THE

RESOURCES TO CARRY OUT THE INSTRUCTIONS

GIVEN TO YOU BY MR. LUCKE, DAILY INSPECTIONS?

CAN YOU DO THAT INDEFINITELY?

A. IF THAT'S WHAT CONTINUED TO BE OUR

DIRECTION, WE WILL

App. 41

APPENDIX Q

[p. 1] PAGES 1-68

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE

LOUIS C. BECHTLE, JUDGE

MARBLED MURRELET C 95-3261 LCB

ET AL., SAN FRANCISCO.

PLAINTIFFS. CALIFORNIA

THURSDAY, FEBRUARY

26, 1998

BRUCE BABBITT, ET AL.,

DEFENDANTS.

)

V. )

)

| COPY

)

REPORTER’S TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR THE PLAINTIFFS: LAW OFFICES OF THOMAS

LIPPE

ONE MARKET PLAZA,

STEUART TOWER

SAN FRANCISCO, CA 94105

BY: THOMAS N. LIPPE, ESO.

LAW OFFICES OF

SHARON E. DUGGAN

1032 IRVING STREET,

SUITE 218

SAN FRANCISCO, CA 94122

BY: SHARON E. DUGGAN,

ESQ.

APPEARANCES CONT’D (NEXT PAGE):

App. 42

REPORTED BY: ROSITA FLORES, CSR, RPR

1301 CLAY STREET,

SUITE 485-5

OAKLAND, CA 94612

COMPUTERIZED TRANSCRIPTION BY ECLIPSE

[p. 2] FOR THE DEFENDANTS:

PILLSBURY, MADISON

& SUTRO

225 BUSH STREEI

SAN FRANCISCO, CA 94104

BY: ALSON R. KEMP JR,

ESO

RAWLES, HINKLE, CARTER

BEHNKE & OGLESBY

lo8 MADISON STREET,

SLITE 300

UKIAH, CA 95482

B8\. JARED G. CARTER, ESQ.

FRANK SHAW BACIK,

ESO

Ip. 11] MR. CARTER BY THROWING OUT

[HE CASE, YOU DON’T HAVE AN INTERPRETATION

AND AN APPLICATION OF THE UNDERLYING STAI-

UTE. IT’S NORMATIVE PROVISIONS. YOU DON’

REACH THAT ISSUE. AND So IT WOULD BE AN

INCORRECT APPLICATION OF THE RAZORE CASE TO

SAY IT WOULD APPLY TO DETERMINE WHETHER OR

NOT A PREVAILING DEFENDANT IS ENTITLED TO

FEES IE WE GET TO THE MERITS, WE HAVE BIG A

rRIAL. AND THE DEFENDANT WINS, WITH THE [p.

App. 43

12} ARTICULATION OF A STANDARD THAT FUR-

THERS THE PURPOSES OF THE ACT. NOTHING IN

RAZORE INVOLVES, IMPLICATES THAT ISSUE IN

ANYWAY.

AND SO OUR POSITION IS THAT IT IS COR-

RECTLY DECIDED, BECAUSE THE DEFENDANT IN

THAT CASE CERTAINLY DIDN’T CONTRIBUTE TO

THE APPLICATION OF THE ACT IN A MANNER TO

CARRY OUT ITS PURPOSES, BUT THAT IT IS INCOR-

RECTLY ARTICULATED. OR IF IT IS CORRECTLY

ARTICULATED, IT APPLIES TO A VERY LIMITED KIND

OF AN ISSUE. IT APPLIES TO THE KIND OF AN ISSUE

THAT IS INVOLVED IN OUR SECTION 9 PART OF THIS

CASE, YOUR HONOR. WE ARE NOT URGING YOU TO

GRANT US FEES UNDER SECTION 9 ON THE THEORY

THAT OUR PARTICIPATION IN OUR LITIGATION IN

SECTION 9 CONTRIBUTED SUBSTANTIALLY TO THE

PURPOSES OF THE ACT. THEY DIDN’T, BUT WE ARE

ASKING FOR FEES ON THAT COUNT BECAUSE IT

WAS UNREASONABLE FOR THE PLAINTIFF TO PUR-

SLE THAT, MAYBE NOT UNREASONABLE TO FILE IT.

WE CERTAINLY DON’T THINK WE MET THE RULE 11

STANDARDS, AND YOU TOLD US WE DIDN’T WHEN

WE ASKED FOR A RULE 11 UNDER RULE 11 FOR FEES

AND COSTS DURING THE COURSE OF THE CASE,

BLT THAT CLAIM WAS PURSUED FAR TOO LONG

AFTER IT BECAME CLEAR THAT THERE WAS NO

MERIT TO IT. AND SO THE RULE WE ARE ARGUING

THAT THE COURT SHOULD APPLY IS THAT, FOR

THOSE PARTS OF A CASE WHERE THERE IS AN

ACTUAL LITIGATION OVER THE MEANING AND

APPLICATION OF THE SUBSTANTIVE PROVISIONS OF

App. 44

THE STATUTE, THEN THE “WHEN APPROPRIATE”

STANDARD APPLIES AS ARTICULATED BY MANY,

MANY CASES, PARTICULARLY CARSON-TRUCKEE,

THAT THE

CERTIFICATE OF REPORTER

I, ROSITA FLORES, OFFICIAL UNDERSIGNED

COURT REPORTER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF CALIFOR-

NIA, 450 GOLDEN GATE AVENUE, SAN FRANCISCO,

CALIFORNIA, DO HEREBY CERTIFY:

THAT THE FOREGOING TRANSCRIPT CONSTI-

TUTES A TRUE, FULL AND CORRECT TRANSCRIP-

TION OF MY SHORTHAND NOTES TAKEN AS SUCH

OFFICIAL REPORTER OF THE PROCEEDINGS HEREIN-

BEFORE ENTITLED, AND REDUCED TO TYPEWRIT-

ING TO THE BEST OF MY ABILITY.

/s/ Rosita Flores

ROSITA FLORES

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.