in the creek drainage. (Id.) Fortna's description places the marbled murrelets at a point below the canopy in the heart of the proposed retention area of THP-237. (Def's. Ex. 841.) This indicates that the proposed retention area of THP-237 is "occupied" by the marbled murrelet. (Pls.' Ex. 273 at 13.)
59. Finally, on July 14, 1992, Fortna detected a single marbled murrelet calling from a point approximately 300 meters south of Station 16, which would place the bird just south of Station 20 in the proposed retention area. (Pls.' Ex. 292.) Fortna's July 14, 1992 detection, as well as the other July 1992 detections in the vicinity of Stations 20 and 21, support a finding that the proposed retention area of THP-237 is "occupied" by the marbled murrelet.
60. At the end of the 1992 survey season Pacific Lumber's Resource Manager, Thomas Herman ("Herman"), hosted a party at his home for Pacific Lumber's forestry staff, which included the company's marbled murrelet surveyors.
(Miller, Tr. 8/16/94 at 186.) At the party, there was a target of a marbled murrelet on a dart board, at which the attendees were throwing darts. (Id.)
61. On September 28, 1992, the marbled murrelet was listed as a "threatened species" under the ESA. 57 Fed. Reg. 4532 (Oct. 1, 1992). During October and November of 1992, Pacific Lumber was informed by various employees of the USF&WS that logging in Owl Creek pursuant to THP-237 would likely cause a "take" of the marbled murrelet in violation of the ESA. (Pls.' Exs. 85, 309 and 333.)
62. On November 24, 1992, the eve of the Thanksgiving holiday, Pacific Lumber again began logging THP-237 at the direction of its president John Campbell. (McLaughlin, Tr. 8/16/94 at 199, 202.) During the trial, Pacific Lumber's logging manager, Dan McLaughlin, testified that one of the reasons the company conducted logging operations in THP-237 over the holiday weekend was because of the company's fear that it "might be stopped again." (Id. at 200.) In fact, Thanksgiving 1992 was the only time that Pacific Lumber's logging crews had worked on a Thanksgiving weekend in McLaughlin's sixteen years with the company, and THP-237 was the only area logged by those crews on Friday, November 27, 1992, and Saturday, November 28, 1992. (Id. at 199-201.)
63. During the 1993 survey season, Pacific Lumber concentrated most of its survey efforts in the southwestern portion of the Owl Creek stand. Not surprisingly, many of the marbled murrelet detections recorded in 1993 were observed in this portion of the forest. In addition, Pacific Lumber failed to conduct marbled murrelet surveys at Owl Creek for a period of 71 consecutive days. (Moore, Tr. 8/18/94 at 90-91.) This was clearly a violation of the PSG protocol. (Pls.' Ex. 274 at 5.) Nevertheless, there were significant detections of marbled murrelets in THP-237 during 1993.
64. On April 16, 1993, WRM surveyor Erin O'Bryan ("O'Bryan") recorded a visual detection of two marbled murrelets circling 20 meters above the canopy at Station 21, which is in the proposed retention area of THP-237. (Pls.' Ex. 280.) According to O'Bryan, the murrelets flew directly over the canopy at Station 21, heading from the southeast to the west. (Id.) According to the 1993 PSG Protocol, circling above the canopy is considered "occupied behavior;" however, the protocol recommends additional surveys depending on the height of the birds above the canopy and distance from potential habitat. (Pls.' Ex. 274 at 12.) In this case two marbled murrelets flew directly over suitable habitat at a height of only twenty meters. This provides strong evidence that the southwestern portion of the Owl Creek stand is "occupied" by the marbled murrelet.
65. On July 1, 1993, five surveyors conducted Pacific Lumber's first search for marbled murrelet eggshell fragments in Owl Creek. (Def's. Ex. 838 at 5-6.) The surveyors searched the ground in the vicinity of Station 20 for two and one-half hours, with no success. (Id.)
66. On July 7, 1993, four Pacific Lumber surveyors conducted a search for marbled murrelet eggshell fragments on a strip of land approximately 120 feet wide and 300 meters long between Stations 6 and 7, which are located to the north of THP-237 on the opposite bank of the Owl Creek. (Pls.' Ex. 284.) The surveyors searched the ground around 70 trees for two hours, with no success.
67. On July 14, 1993, another Pacific Lumber crew conducted ground searches in the vicinity of Stations 16 and 21, once again without success. (Def's. Ex. 838 at 3-4.) One of the surveyors, however indicated that the area of the search was not very good habitat for the marbled murrelet. (Id. at 4.)
68. On July 25, 1993, WRM surveyor Jeff Steinman ("Steinman") recorded 11 detections of 14 marbled murrelets vocalizing and circling above and below the canopy at Station 20, which is to the southwest of Station 21 in the proposed retention area of THP-237. (Pls.' Ex. 279.) According to Steinman, two marbled murrelets flew 50 feet below the canopy heading from the east to the north; one marbled murrelet flew 50 feet below the canopy heading from the south to the northeast, which is in the direction of the proposed harvest area; two marbled murrelets were observed circling at the top of the canopy (150 feet); and five marbled murrelets were observed flying just at or above the top of the canopy (150 feet). (Id.) According to the 1993 PSG Protocol, circling below the canopy provides some of the strongest evidence that a stand is "occupied." (Pls.' Ex. 274 at 12.) Given the large number of marbled murrelets observed flying at or below the canopy level of Station 20 on July 25, 1993, there can be no question that the southwestern portion of the Owl Creek stand is "occupied" by the marbled murrelet.
69. On June 15, 1994, four marbled murrelets were observed flying just over the top of the canopy at Station 16, which is located on the southwestern edge of the Owl Creek stand adjacent to the proposed retention area of THP-237. (Pls.' Ex. 261 at 20.) According to the surveyor, Nick Matthews, three murrelets flew directly overhead from east to west, heading from the direction of the proposed retention area to the sea. (Id. at 21.) One other murrelet flew over the canopy from the northeast to the southwest, heading from the direction of the proposed harvest area to the sea. (Id.)
70. On July 11, 1994, a WRM surveyor recorded two detections of 13 "overlapping" marbled murrelet vocalizations from a stationary position located 150 meters to the southwest of Station 21, which is in the proposed retention area of the stand. (Def's. Ex. 830.) This indicates that the marbled murrelets were calling from a stationary position in the stand, which is classified as "occupied behavior." (Pls.' Ex. 277 at 13.)
71. On the same day, WRM surveyor Michael Penney ("Penney"), observed a pair of marbled murrelets flying below canopy level at Station 6, which is immediately to the north of the proposed harvest area of THP-237. (Penney, Tr. 8/18/94 at 107-09; Pls.' Ex. 290; Kerns, Tr. 9/7/94 at 15.) According to Penney, the marbled murrelets were flying from the southeast, directly out of the proposed harvest area of THP-237, to the northeast.
(Penney, Tr. 8/18/94 at 108; Pls.' Ex. 290.) Under the 1994 PSG Protocol, Penney's detection indicates that the proposed harvest area of THP-237, which is adjacent to Station 6, is "occupied" by the marbled murrelet.
(Pls.' Ex. 277 at 13.)
72. On July 14 and July 21, 1994, Pacific Lumber conducted ground searches for marbled murrelet eggshell fragments to the north and south of Station 6. (Def's. Ex. 838 at 7-8.) A total of 18 surveyors searched the area for three and one-half hours, without success. (Id.)
73. Pacific Lumber stopped surveying for marbled murrelets in Owl Creek after July 21, 1994.
F. THP-237 is "Occupied" by the Marbled Murrelet
74. After carefully reviewing all of the evidence, and weighing the credibility of the witnesses, the court finds that EPIC has proven, by a preponderance of the evidence, that THP-237 is "occupied" by the marbled murrelet. That is, EPIC has proven, by a preponderance of the evidence, that marbled murrelets are nesting in THP-237.
75. Under the PSG Protocol, the test for determining whether a stand of potential habitat is "occupied" is simple: if a surveyor detects marbled murrelets during a survey visit and observes "occupied behavior," the entire stand is classified as "occupied." (Pls.' Ex. 277 at 12-13, 29.) EPIC has proven that THP-237 satisfies this test.
76. First, EPIC has established that THP-237 is suitable habitat for the marbled murrelet. It has been classified as such by EPIC's expert witnesses, the PSG Protocol, the USF&WS Marbled Murrelet Recovery Team, and by Pacific Lumber itself in its map of the most suitable nesting habitat for the marbled murrelet on company property.
(Moore, Tr. 8/17/94 at 158; Nelson, Tr. 8/16/94 at 86; Burkett, Tr. 8/18/94 at 185, 262-65; Pls.' Ex. 248 at 2-3; Pls.' Ex. 277 at 3; Pls.' Ex. 329.)
77. Second, Pacific Lumber's survey records from 1992, 1993 and 1994 demonstrate that numerous instances of "occupied behavior" have been observed in and around THP-237, in both the proposed harvest area and the proposed retention area. (Nelson, Tr. 8/16/94 at 62.) Therefore, in accordance with the PSG
Protocol, THP-237 is properly classified as an "occupied site." (Pls.' Ex. 277 at 13.)
78. It is important to remember that the marbled murrelet is an elusive species, and relatively few murrelets remain in the at-sea population off south central Humboldt County. This mean that any detection of a marbled murrelet at a stand of suitable habitat in south central Humboldt County is significant. Add to this the remoteness of the Owl Creek stand, as well as its isolation from other suitable habitat, and the detections of marbled murrelets at THP-237 begin to take on greater significance.
79. In this case, there have been approximately 100 detections of marbled murrelets at Owl Creek, throughout the birds' breeding season, for a period of three consecutive years. It is reasonable to conclude that there can be only one explanation for the marbled murrelets' continued presence in Owl Creek: the marbled murrelet is using the Owl Creek stand for nesting purposes. As Pacific Lumber states in its HCP:
There is every reason to believe that during the spring and early summer, when activity levels are lower, that largely nesting birds are being detected during morning observation periods. This is the period when most birds are incubating eggs, attending newly hatched young, and starting into the nestling period. The period when detection rates increase, often dramatically, is when most nests contain nestlings.
(Pls.' Ex. 334 at V-4.)
80. During the trial, Pacific Lumber attempted to minimize the significance of its marbled murrelet detections by arguing that the quantity of detections, especially detections of "occupied behavior," was too low, when compared to the number of hours spent surveying, for the finder of fact to conclude that THP-237 is "occupied" by the marbled murrelet. Pacific Lumber's expert witnesses, Speich and Kerns, opined that the significant number of "no detections" recorded by Pacific Lumber's surveyors, coupled with the lack of observations of behaviors closely associated with nesting, leads them to conclude that THP-237 is not "occupied" by he marbled murrelet. (Speich, Tr. 9/8/94 at 74-75; Kerns, Tr. 9/7/94 at 47-48, 52-56, 91-94.) The opinions of Speich and Kern are entirely dependent upon the integrity of Pacific Lumber's surveys, or more accurately, that portion of Pacific Lumber's survey data which indicates that marbled murrelets were not detected in THP-237. As will be discussed below, this portion of Pacific Lumber's surveys is patently unreliable.
81. Pacific Lumber's "no detections" argument unsuccessfully attempts to sidestep a fundamental flaw in the manner in which Pacific Lumber has dealt with the task of evaluating the potential presence of marbled murrelets in Owl Creek. Quite simply, Pacific Lumber's marbled murrelet surveys were not conducted by an independent and impartial third party using the scientific method to determine whether the Owl Creek stand is occupied by the marbled murrelet. Instead, Pacific Lumber's marbled murrelet surveys in Owl Creek were conducted by surveyors, who to a considerable extent were Pacific Lumber employees, and all of whom were under the direct supervision of Pacific Lumber's top and middle management, whose understandable loyalty to Pacific Lumber extended to the harvesting of THP-237 as the desired company goal. As Thomas Herman, the head of Pacific Lumber's forestry operations, stated during the trial: "Our intention in running our business is to grow and harvest trees. Just about anything we do is intended to cut and grow trees." (Herman, Tr. 9/6/94 at 174.) Herman admitted that the purpose of Pacific Lumber's marbled murrelet surveys was to let the company continue its harvest operations. (Id.) Pacific Lumber displayed its commitment to harvesting trees at all costs when it logged THP-237 in June and November 1992, contrary to the conditional approval it had received from the Board of Forestry just a few months before, and despite mounting evidence that Pacific Lumber had in its possession that the stand was occupied by the marbled murrelet. In this case, Pacific Lumber's bold pursuit of its intention "to cut and grow trees" renders the objectivity of its survey results highly suspect.
82. Additionally, there is sufficient evidence in the record for the court to find that Pacific Lumber administered its marbled murrelet surveys at THP-237 with the intent to either avoid detecting marbled murrelets or, to the extent that making detections could not be helped, to grossly understate the marbled murrelets' presence in THP-237. Despite the Board of Forestry's expressed condition of approval, Pacific Lumber's marbled murrelet surveys were never conducted in accordance with the PSG Protocol. Moreover, Pacific Lumber's utilization of the following methods to conduct marbled murrelet surveys at THP-237 provides clear evidence that the company's marbled murrelet surveys were either designed to fail to detect murrelets, or they were administered with indifference as to whether the required procedure would be used or not:
(a) Pacific Lumber's employees decided where the survey stations would be located and when they would be manned;
(b) only four survey stations were located in the proposed harvest area itself, and only two survey stations were located on the western edge of THP-237 - the direction from which the birds could be expected to fly from the sea and into the stand;
(c) in direct contradiction to the PSG Protocol, survey stations were located near loud noise sources, and a substantial number of surveys were conducted in adverse weather conditions, which were known to inhibit the surveyors' ability to detect murrelets;
(d) in 1992, Pacific Lumber harvested in THP-237 during the middle of the nesting season, at the very beginning of the peak period for marbled murrelet detectability;
(e) in 1993, 71 consecutive days were allowed to elapse between surveys;
(f) despite the fact that Pacific Lumber's surveyors were trained to be able to audibly detect the marbled murrelet, and were certified by the State of California as being able to do so, Pacific Lumber' survey managers instructed the company's field surveyors that they were not to record detections of single marbled murrelet "keer" calls, or detections of the marbled murrelets' distinctive wing beats or "jet sounds;"
(g) two surveyors who recorded visual detections were interrogated by their supervisors, on the surveyors' own time, under circumstances that appear to have been calculated to persuade the surveyors to change or delete marbled murrelet detections that were contrary to Pacific Lumber's interests; and
(h) Pacific Lumber never conducted ground searches for eggshell fragments in THP-237 until July 1993, and it never conducted ground searches in the proposed harvest area until July 14, 1994, after Penney observed two marbled murrelets flying below the canopy level at Station 6.
83. The weakness of Pacific Lumber's "no detection" argument is further demonstrated by the fact that Pacific Lumber has never fully complied with the Board of Forestry's requirement that it "share" information obtained from its marbled murrelet surveys with the DFG to ensure that a "take" of the marbled murrelet will not occur during harvesting. Pacific Lumber did not provide survey data sheets for the 1992 survey season to the DFG until approximately July 31, 1992, more than one month after the company surreptitiously logged THP-237.
(Moore, Tr. 8/17/94 at 149.) Pacific Lumber revealed for the first time during the trial that the survey data sheets it turned over to the DFG on July 31, 1992 were not the original survey data sheets completed by the company's field surveyors at the time they conducted their surveys.
84. On the second day of the trial, August 16, 1994, Pacific Lumber revealed for the first time that its two principal survey contractors kept two different sets of survey data sheets for the marbled murrelet surveys conducted in THP-237 during 1992. (Tr. 8/16/94 at 147-50.) The first set of survey sheets, which Pacific Lumber characterized as the "original" survey sheets, were completed by NRM's certified marbled murrelet surveyors in the field at the time they conducted their surveys. (Id. at 147-48.) According to Pacific Lumber, NRM turned over the original survey sheets to Pacific Lumber's primary survey contractor, WRM; WRM "replicated" the original data onto a second set of survey sheets; and Pacific Lumber turned over the second set of sheets to the DFG on July 31, 1992. (Id.) Pacific Lumber, however, never produced the original 1992 survey data sheets until the second day of the trial, more than two years after they were originally completed. (Id.; Pls.' Exs. 292 and 293.) During the trial, Kerns testified that the original survey sheets were recently uncovered in his closet at home, which he referred to as WRM's "archives." (Kerns, Tr. 9/7/94 at 39.)
85. Further examination of the original NRM survey sheets reveals that Pacific Lumber did more than merely "replicate" data from one set of survey sheets to another. Many of the original NRM survey sheets contain pertinent information which may have helped the DFG evaluate the validity of Pacific Lumber's surveys and the impact that harvesting THP-237 would have on the marbled murrelet, including: field surveyors' references to adverse weather conditions which may have had an adverse impact on survey efforts; detections of predators such as ravens, stellar jays and hawks in and around THP-237; the degree of canopy coverage at the survey stations; characteristics of the old-growth at the site; and surveyors references to whether the portion of the stand that they were surveying was suitable nesting habitat for the marbled murrelet. (Pls.' Ex. 292.) Nearly all of these comments were deleted or altered before the data was "replicated" onto the second set of survey sheets that Pacific Lumber submitted to the DFG.
(Pls.' Exs. 292-A-T.)
86. Pacific Lumber's performance concerning the reworking and withholding of the original survey data sheets materially weakens the "no-detection" premise that Speich and Kerns rely on for their opinions concerning occupancy. Consequently, these opinions are not sufficiently persuasive to dislodge a finding that EPIC has satisfied its burden of proof.
87. Finally, the court finds that Pacific Lumber's expert witnesses, Speich and Kerns, lack objectivity and credibility. Both Speich and Kerns have been paid substantial sums of money to conduct marbled murrelet research on behalf of the company, and to act as advocates for Pacific Lumber in various forums. Since 1990, Pacific Lumber has paid Kerns' firm, WRM, nearly one million dollars to conduct marbled murrelet surveys and research for the company.
(Tr. 9/8/94 at 161-62.) In addition, Kerns has participated in Pacific Lumber's interaction with state and federal agencies regarding the company's efforts to oppose the listing of the marbled murrelet as a protected species, to harvest THP-237, and to obtain an "incidental take" permit for the marbled murrelet.
(Kerns, Tr. 9/7/94 at 153-58; Pls.' Exs. 96, 309 and 334.) Shortly before the marbled murrelet was listed as an "endangered species" by the State of California, Speich pitched his services as a "consultant" to Pacific Lumber's president, John Campbell, Kerns, and other Pacific Lumber officials, advising them to "get in front of the curve" on marbled murrelet research. (Speich, Tr. 9/8/94 at 38-41, 87.) Speich told Pacific Lumber's executives that "if they want to be able to continue [to] harvest timber, they're going to have to be able to demonstrate [the] relationship of marbled murrelet to those timbers that they are projecting to harvest." (Id. at 41.) One of Speich's first assignments was to testify before the California Fish and Game Commission in opposition to the State of California's listing of the marbled murrelet as an "endangered species" under CESA. (Id. at 87-88.) Speich also submitted comments to the USF&WS criticizing the research upon which the federal listing of the marbled murrelet as a "threatened species" is based. (Id. at 88-89.) Since 1992, Pacific Lumber has paid Speich's consulting firm in excess of $ 250,000.00 for Speich's work regarding the marbled murrelet.
(Id. at 119-20.) Also, Speich's recent publications on the marbled murrelet have been funded either by Pacific Lumber or by the paper industry. (Id. at 92-93.)
88. Additionally, the expert reports of both Speich and Kerns were written with substantial input from Pacific Lumber's attorneys. Kerns repeatedly sought guidance from Pacific Lumber and its attorneys in crafting his expert report. (Kerns, Tr. 9/7/94 at 112-14.) After meeting with Pacific Lumber's attorneys, Kerns drafted and initial expert report which contained a series of outlines and proposed conclusions. (Id. at 112-13.) Kerns faxed his draft report to Pacific Lumber's attorneys and asked them "How much flesh should be hung on the bones?" (Id. at 113-14.) Kerns also reviewed and edited Speich's expert report. (Id. at 114.) Similarly, Pacific Lumber's attorneys gave Speich detailed instructions about what he should state in a sworn declaration that Pacific Lumber submitted to the California Court of Appeals in opposition to a temporary stay that the court had issued against THP-237. (Speich, Tr. 9/8/94 at 133-37; Pls.' Ex. 333.) In a letter dated December 1, 1992, Pacific Lumber's attorney, Frank Bacik, stated:
The declaration should be simple and direct, stating that under your review of the facts and circumstances the Owl Creek plan area is not an active murrelet site or "occupied" by murrelets that will be directly "taken." . . . In general, it should say that there is no proof, and you do not believe that there is available adequate evidence or proof, to establish that implementation of the plan will kill or injure murrelets or otherwise pose a devastating risk to the continued existence of the species; that they cannot be annoyed if they are not present; that they will not be present during the non-breeding season (winter).
(Pls.' Ex. 333.) The testimony of Speich and Kerns during the trial in this case was identical to the declaration proposed by Bacik in 1992.
89. As the Ninth Circuit recently stated in Daubert:
One very significant fact to be considered [in the context of the court deciding whether to admit expert testimony] is whether the experts are proposing to testify about matters growing naturally and directly out of research that they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely as an eleemosynary gesture. But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist's normal workplace is in the lab or the field, not the courtroom or the lawyer's office.
Daubert, F.3d at , 1995 WL 1736 at *5 This standard is equally applicable when weighing the credibility of an expert witness after he has testified. In this case, the court may not ignore the fact that the primary experience that Speich and Kerns have had with the marbled murrelet has grown out of their involvement with Pacific Lumber, for which they have been paid presumably fair and full compensation; that their trial testimony, which contradicted the generally accepted scientific knowledge about the marbled murrelet, appears to have been crafted by Pacific Lumber's attorneys; and that Speich and Kerns have acted as advocates for Pacific Lumber in a variety of forums, including during the trial in this case. For these reasons, the court finds that Speich and Kerns lack objectivity and credibility.
90. In sum, the court finds that there have been sufficient observations of "occupied behavior" in and around THP-237 for the court to conclude that the Owl Creek stand is "occupied" by the marbled murrelet. See, infra, Section II-E. Pacific Lumber's attempt to minimize the significance of these detections is not persuasive because its evidence by merely show a variety of efforts by the company to avoid, or at least to discourage, the inevitable recording of detections of marbled murrelets, and to understate the importance of detections that are recorded. The other evidence of nearly 100 detections, however, has demonstrated that these efforts failed. Finally, the opinions of Pacific Lumber's expert witnesses regarding the marbled murrelets' occupancy of THP-237 are unreliable, principally because they are dependent upon Pacific Lumber's discredited claims that marbled murrelets do not inhabit THP-237, all of which have been shown to be based on Pacific Lumber's survey methods and reporting of survey data which are unreliable.
H. Pacific Lumber's Implementation of THP-237 would both "Harm" and "Harass" the Marbled Murrelet
91. Under the ESA, it is illegal for any person to "take" any endangered species of fish or wildlife within the United States or the territorial sea of the United States.
16 U.S.C. § 1538(a)(1)(B). The ESA defines "take" as follows:
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.