The opinion of the court was delivered by: LOUIS C. BECHTLE
On February 2, 1994, U.S. District Judge Fern M. Smith issued a preliminary injunction barring Pacific Lumber from engaging in any logging activities in THP-237 until further order of this court. Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 12 (N.D. Cal. Feb. 2, 1994).
The court held an eight day non-jury trial between August 15, 1994 and September 8, 1994 to determine whether the marbled murrelet occupies the proposed timber harvest area of THP-237, and, if so, whether Pacific Lumber's implementation of THP-237 will result in a "take" of the species in violation of the ESA. Based on the evidence of record, and the court's findings of fact and conclusions of law as set forth below, the court finds that the marbled murrelet does, in fact, occupy the proposed timber harvest area, and that Pacific Lumber's implementation of THP-237 will sufficiently "harm" and "harass" the marbled murrelet to constitute a "take" of the species in violation of 16 U.S.C. § 1538(a)(1)(B).
Pacific Lumber is hereby permanently enjoined from implementing THP-237.
A. The Parties, Jurisdiction, Venue and Standing
1. EPIC is an "environmental watchdog organization devoted to the protection of threatened and endangered species in the Northern California forest ecosystem." Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 1 (N.D. Cal. Sept. 1, 1993). EPIC's 300 members live and work in the redwood region of Northern California. (Lanham, Tr. 8/15/94 at 42, 46.) Many of EPIC's members are committed to protecting the biodiversity of the redwood region. (Id. at 55.) In this role, they monitor areas where they believe marbled murrelets are nesting, and attempt to determine what impact logging these areas will have on the marbled murrelet and other old-growth dependent species. (Id.) This court has already found that EPIC's members will suffer an "injury in fact" if Pacific Lumber's implementation of THP-237 results in a "take" of the marbled murrelet in violation of the ESA. Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 5-9 (N.D. Cal. Sept. 1, 1993) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130, 2143 n. 8 (1992)). Thus, EPIC has standing to sue under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(A). Id.
2. The marbled murrelet is a rare seabird which nests primarily in old-growth coastal coniferous forests between southeast Alaska and Santa Cruz, California. (Pls.' Ex. 272 at 2.) Effective March 12, 1992, the marbled murrelet was listed as an "endangered species" under the California Endangered Species Act ("CESA"), 14 Cal. Fish & Game Code § 1750, et seq.
See 14 C.C.R. § 670.5. Effective September 28, 1992, the marbled murrelet was listed as a "threatened species" under the federal ESA within its range in California, Oregon and Washington.
57 Fed. Reg. 45328 (Oct. 1, 1992); see also 50 C.F.R. § 17.11 (1993). Thus, as a protected species under the ESA, the marbled murrelet has standing to sue "in its own right." Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 9, n. 4 (N.D. Cal. Sept. 1, 1993) (quoting Palila, 852 F.2d at 1107.).
3. Pacific Lumber is a logging company with a base of operations in Scotia, California. (Herman, Tr. 9/6/94 at 165.) Pacific Lumber owns and proposes to harvest the portion of the Owl Creek forest covered by THP-237. (Def's. Exs. 816 and 818.)
4. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 16 U.S.C. §§ 1540(c) and 1540(g)(1).
5. Venue is proper pursuant to 28 U.S.C. § 1391(b).
6. The marbled murrelet is a small seabird in the family of alcids (which includes auks, murres and puffins).
(Carter, Tr. 8/15/94 at 58-60; Pls.' Ex. 251 at 1, 7-8.) The marbled murrelet is approximately nine inches in length, it has a short neck and tail, small wings, and a heavy compact body. (Pls.' Ex. 251 at 1, 7-8; Nelson, Tr. 8/16/94 at 53.) Both adult murrelets and their chicks have "cryptic plumage;" during the breeding season, the adult's plumage is dark brown and gray with black bars above and a heavily mottled light brown below. (Pls.' Ex. 251 at 8; Nelson, Tr. 8/16/94 at 22, 53; Carter, Tr. 8/15/94 at 66.)
7. Like other alcids, the marbled murrelet spends most of its time at sea feeding on small fish. (Pls.' Ex. 251 at 7-8.) The marbled murrelet, however, is the only member of the alcid family that nests in trees. (Id. at 1; Carter, Tr. 8/15/94 at 60.) Within the contiguous United States, the marbled murrelet nests exclusively in old-growth coniferous forests within 30 miles of the northern Pacific coastline.
(Carter, Tr. 8/15/94 at 60-61, 72; Burkett, Tr. 8/18/94 at 185, 224-26; Pls.' Exs. 223, 224, 251, 270, 304 and 329.) These old-growth forests contain centuries-old redwood and Douglas fir trees which are hundreds of feet tall, with large trunks that can range from two feet to ten feet in diameter. (Fox, Tr. 9/7/94 at 229-30; Herman, Tr. 9/6/94 at 112, 120.) Marbled murrelet nest trees generally have a large trunk (more than 32 inches in diameter) and large limb structures that are used as a nest platform. (Nelson, Tr. 8/16/94 at 53.) Typically, the marbled murrelet chooses a limb at least 150 feet above the forest floor. (Id. at 55.)
8. Marbled murrelets do not breed until they are several years old, and adults do not necessarily breed every year. (Pls.' Ex. 251 at 1, 9-10.) Additionally, the marbled murrelet does not "build" a nest; rather, the female lays a single egg each year in a natural depression on a large horizontal, moss-covered limb of an old-growth redwood or Douglas fir tree. (Id.; Nelson, Tr. 8/16/94 at 21-22; Moore, Tr. 8/17/94 at 156.) After an egg is laid, the male and female incubate the egg, trading off duties on a daily basis. One murrelet remains on the nest while the other is at sea, and the birds exchange places at dawn. (Nelson, Tr. 8/16/94 at 23-25.)
9. Marbled murrelets nest solitarily, rather than in colonies. (Id. at 26; Carter, Tr. 8/15/94 at 66; Burkett, Tr. 8/18/94 at 264.) While a forest where marbled murrelets are nesting usually contains more than one such nest, only a single pair of marbled murrelets will nest in any one tree within a particular forest stand. (Nelson, Tr. 8/16/94 at 27, 52.) In addition, marbled murrelets are known to have high "site fidelity;" i.e., the species returns each year to the same forest "stand."
(Id. at 70-71; Carter, Tr. 8/15/94 at 151; Speich, Tr. 9/8/94 at 63-64.)
10. The marbled murrelet is highly susceptible to predation during its nesting season, which lasts from approximately mid-April until September. (Moore, Tr. 8/17/94 at 155; Pls.' Ex. 251 at 9, 12-13.) Of the marbled murrelet nests which have been discovered, few have achieved nesting success. (Carter, Tr. 8/15/94 at 86; Nelson, Tr. 8/16/94 at 26.) That is, the chick hatched in the nest rarely survives to become a fully-fledged bird. Death of marbled murrelet chicks before fledgling results primarily from attacks by avian predators. (Nelson, Tr. 8/16/94 at 26.) Predators such as ravens, hawks and stellar jays, known as "corvids," are generally considered to be a significant threat to the marbled murrelet. (Id. at 26-27; Burkett, Tr. 8/18/94 at 263-64; Moore, Tr. 8/17/94 at 178-79; Speich, Tr. 9/8/94 at 76.) Some experts believe that, even under ideal circumstances, more than 50 percent of marbled murrelet nests are subject to nest predation. (Moore, Tr. 8/17/94 at 180.)
11. Because the marbled murrelet is highly susceptible to predation during the nesting season, the bird has developed very secretive behavior to protect itself and its young. (Carter, Tr. 8/15/94-at 62-63, 65-66.) The marbled murrelet prefers to nest in areas where the foliage is thick enough to protect it from being spotted by avian predators. (Moore, Tr. 8/17/94 at 155.) While on land, the marbled murrelet is nocturnal; it flies primarily in darkness or at very low light levels, at dawn and dusk. (Carter, Tr. 8/15/94 at 66; Nelson, Tr. 8/16/94 at 53.) Additionally, the marbled murrelet flies very fast through the air, at speeds up to sixty miles per hour. (Nelson, Tr. 8/16/94 at 18.)
12. Because the marbled murrelet depends on stealth for its existence, it is "very, very difficult to study and find." (Nelson, Tr. 8/16/94 at 52-53.) In the words of one of Pacific Lumber's expert witnesses, Steven Kerns ("Kerns"): "the murrelet is a bird that is hard to detect at any given bird sites. It is a secretive bird." (Kerns, Tr. 9/7/94 at 22.) "The murrelet basically makes its living by staying out of everything's way." (Moore, Tr. 8/17/94 at 155.)
13. The historical population of the marbled murrelet in California is believed to have been about 60,000. (Pls.' Ex. 251 at 2, 16-17.) Currently, it is believed that approximately 2000 to 5000 marbled murrelets remain in California. (Pls.' Ex. 248 at 1; Speich, Tr. 9/8/94 at 80.) In 1991, the California Department of Fish and Game ("DFG") estimated that the total breeding population of the marbled murrelet in California was approximately 1650 to 2000 birds. (Pls.' Ex. 251 at 2, 17-19.)
14. The existing population of the marbled murrelet in the Pacific Northwest is known to be declining rapidly. (Carter, Tr. 8/15/94 at 86-88; Pls.' Exs. 248 and 251.) The two primary reasons for this decline are the bird's very low annual reproductive potential (1 chick per successful breeding pair), which is exacerbated by nest failure due to predation, and the loss of the vast majority of the marbled murrelet's old-growth nesting habitat. (Pls.' Ex. 248 at 1; Carter, Tr. 8/15/94 at 86-90; Burkett, Tr. 8/18/94 at 173; Moore, Tr. 8/17/94 at 105-06.) In California, more than 96 percent of the marbled murrelets' old-growth nesting habitat has been lost to commercial logging during the past 150 years. (Pls.' Exs. 223 and 224; Burkett, Tr. 8/18/94 at 227; Fox, Tr. 9/7/94 at 223; Moore, Tr. 8/17/94 at 105-06.) Pacific Lumber estimates that a total of only 137,000 acres of old-growth remain in the State of California. (Pls.' Ex. 334 at IV-5.) Pacific Lumber owns approximately four percent of this total. (Id.)
15. The remaining population of marbled murrelets in California is separated into three clusters, which are closely associated with the three remaining blocks of old-growth in the state. (Pls.' Ex. 251 at 17.) The largest remaining cluster of marbled murrelets in California is located in Del Norte and northern Humboldt Counties in the vicinity of Jedediah Smith State Park and Redwood National Park. (Id.) The next largest cluster is located in southern San Mateo and northern Santa Cruz Counties in the vicinity of Portola State Park and Big Basin State Park. (Id.) The smallest remaining cluster is located in "an isolated locality" in south central Humboldt County in the vicinity of Grizzly Creek State Park, Humboldt Redwoods State Park and Owl Creek.
(Id.) The DFG believes that the geographic separation between these three clusters may be substantial enough to prevent movement of individual marbled murrelets between populations.
16. After the logging of an old-growth forest, the original "cathedral-like" columns of trees do not regenerate for a period of two hundred years. (Fox, Tr. 9/7/94 at 226.) Because of the precarious state of the marbled murrelet population, the destruction of any significant amount of marbled murrelet habitat will result in a high probability that the Northern California population will become extinct. (Carter, Tr. 8/15/94 at 95.) The DFG's June 1991 "Status Review of the Marbled Murrelet" states "all remaining old-growth coastal coniferous forest supporting Marbled Murrelets must be protected from any further modification." (Pls.' Ex. 251 at 5, P 4.) Destruction of any additional occupied stands would, therefore, retard the marbled murrelets' recovery. (Carter, Tr. 8/15/94 at 98-101.) As Pacific Lumber's expert witness Steven Speich ("Speich") asserted, "the whole reason for being a marbled murrelet is to reproduce successfully." (Speich, Tr. 9/8/94 at 66.) Successful nesting is critical to the survival of the species, because most of the population is unable to successfully raise young in the nest. (Carter, Tr. 8/15/94 at 173-74.) Unless the marbled murrelet population is kept at a sustainable level, without further loss of habitat, it is very likely that the marbled murrelet will slip toward extinction. (Id. at 81-82, 86, 91-96, 174; Pls.' Exs. 270 and 271.)
17. In connection with the marbled murrelets' listing as a "threatened species" under the ESA, the United States Fish and Wildlife Service ("USF&WS") appointed a Marbled Murrelet Recovery Team ("MMRT") to review the conservation needs of the species in California, Oregon and Washington. (Pls.' Ex. 248 at 1.) In a status report dated April 14, 1994, the MMRT concluded that "any reduction in occupied nesting habitat for the Marbled Murrelet would hamper efforts to stabilize the population and eventually recover the species." (Id. at 2.) The MMRT recommended that the USF&WS designate all suitable marbled murrelet nesting habitat on Pacific Lumber's lands in Humboldt County, California as "critical habitat" for the marbled murrelet.
(Id. at 2-3.) The MMRT concluded that "these areas are the only available nesting habitat for the population of Marbled Murrelets that occur at-sea in the area of Cape Mendocino." (Id. at 3.)
18. The Owl Creek forest is an isolated 440 acre stand of contiguous old-growth redwood and Douglas fir trees located 22 miles inland from the Pacific coast in south central Humboldt County. (Pls.' Ex. 329; Kerns, Tr. 9/7/94 at 57; Def's. Exs. 812 and 813.) The Owl Creek forest is completely surrounded by previously harvested clear cut and second-growth forests for four to five miles in all directions. (Pls.' Ex. 329; Moore, Tr. 8/17/94 at 105-06; Burkett, Tr. 8/18/94 at 265.) The nearest stand of old-growth to Owl Creek is Allen Creek, which is located some four miles to the west. (Moore, Tr. 8/17/94 at 105-06.)
19. THP-237 is a 237 acre, kidney-shaped segment of the Owl Creek forest. (Def's. Exs. 816.) Within THP-237, the forest consists of old-growth redwood and Douglas fir trees which are between two and eight feet in diameter at breast height ("d.b.h."), in excess of 150 feet tall, with canopy closure ranging from 50 to 100 percent. (Pls.' Exs. 292-M, 329, 334, 335, 336 and 337; Def's. Exs. 812 and 813.) The old-growth redwood and Douglas fir trees in THP-237 range in age from 150 to more than 500 years old. (Herman, Tr. 9/6/94 at 109.)
20. Because of the age and size of its old-growth redwood and Douglas fir trees, the high degree of canopy closure, the existence of suitable nest platforms, and its proximity to the ocean, the Owl Creek stand, including THP-237, is suitable nesting habitat for the marbled murrelet. (Pls.' Ex. 248 at 2-3; Pls.' Ex. 298; Moore, Tr. 8/17/94 at 158; Nelson, Tr. 8/16/94 at 55; Burkett, Tr. 8/18/94 at 185.) In fact, Pacific Lumber has ranked THP-237 as some of the most suitable and important nesting habitat for the marbled murrelet on the 196,000 acres of land owned by the company in Humboldt County, California.
(Pls.' Exs. 329 and 334.)
21. On April 11, 1990, Pacific Lumber submitted THP-237 to the California Department of Forestry ("CDF") for approval.
(Def's. Ex. 816.) Initially, the CDF refused to approve Pacific Lumber's proposal for THP-237 because the proposed harvest plan did not provide sufficient mitigation measures to ensure that a "take" of the marbled murrelet would not occur in violation of the CESA.
(Def's. Ex. 817.)
23. After conversations with representatives of the CDF and DFG at THP-237 in August 1992, Pacific Lumber agreed to amend THP-237 to set aside certain mitigation zones for the marbled murrelet, and to refrain from harvesting THP-237 during the marbled murrelets' nesting season. (Def's. Ex. 832.)
24. On November 25, 1992, Pacific Lumber recorded a "minor amendment" to THP-237 which set aside three areas of THP-237 from logging for long as the marbled murrelet continues to be listed as a threatened or endangered species under the state or federal ESA, or until a marbled murrelet management plan, such as a habitat conservation plan under 16 U.S.C. § 1539(a)(2), is approved for all of Pacific Lumber's lands. (Def's. Ex. 833; Herman, Tr. 9/6/94 at 152; Speich, Tr. 9/8/94 at 145.) The amended THP-237 contains an 83 acre "retention area" in the southwestern portion of the stand, which will not be harvested during the specified period of time; 23 acres of "marbled murrelet mitigation zones," which will not be cut at all; and 137 acres designated as the "harvest area," of which 40 to 60 percent of the trees will be harvested immediately.
(Herman, Tr. 9/6/94 at 118-19; Def's. Ex. 818.)
25. Pacific Lumber has proposed a "modified selection cut" for THP-237. (Moore, Tr. 8/17/94 at 166-67.) This is not an outright clear cut, but rather a two-step clear cut. (Id.) The initial cut will take the largest old-growth trees in the harvest area. (Id.) Within ten years, Pacific Lumber will reenter the stand and harvest the remaining old-growth. (Id.; Pls.' Ex. 334 at II-3.)
27. The PSG Protocol was not designed specifically to find murrelet nests, and the failure to find nests in an area does not rule out the probability that marbled murrelets are nesting within a stand.
(Nelson, Tr. 8/16/94 at 54-55.) Instead, the PSG Protocol classifies certain observed behaviors to determine the "presence" of marbled murrelets in a stand of "potential habitat," or to determine whether a particular stand is "occupied" by marbled murrelets.
(Pls.' Ex. 277 at 2.)
28. The unit of measure under the PSG Protocol is the "detection" of single bird or flock. (Id. at 4.) The PSG Protocol defines a "detection" as "the sighting or hearing of one or more birds acting in a similar manner." (Id.) For example, if a surveyor sees or hears a single marbled murrelet circling overhead for three minutes, the protocol states that this should be recorded as a single detection. (Id.) If the surveyor loses contact with the bird and then hears a marbled murrelet calling from an unexpected direction, this should be recorded as two detections. (Id.) When a flock of birds is observed splitting into two groups, this should be recorded as one detection (Id.) If two flocks of birds are observed merging into one, this should be recorded as two detections. (Id.)
29. The PSG Protocol recommends that marbled murrelet "surveys" take place at regular intervals during the murrelets' breeding season, which generally occurs between mid-April and early August of each year.
(Nelson, Tr. 8/16/94 at 28; Pls.' Exs. 272, 273, 274 and 277.) According to the protocol, marbled murrelet detectability at inland sites in California appears to have a pre-peak level of moderate intensity during the spring (possibly during incubation), and a peak level of high activity during the last three weeks of July (possibly during the chick period). (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 5; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 5.) Detections tend to decrease markedly in August, presumably because the young marbled murrelets are undergoing a flightless molt at sea. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 5; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 5.)
30. During a survey, individual surveyors are placed at various observation stations which are arranged in advance according to factors sets forth in the protocol. (Nelson, Tr. 8/16/94 at 29.) Since marbled murrelets are rarely seen by observers (75 to 95 percent of all detections in California are audible detections), the PSG Protocol recommends that surveyors should avoid placing survey stations near loud noise sources, such as creeks or busy roads. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 6; Pls.' Ex. 277 at 15.) The PSG Protocol also recommends that surveys should not be conducted during rainy or windy conditions when it becomes difficult to hear the birds, or in heavy fog which limits visibility. (Pls.' Ex. 272 at 6; Pls.' Ex. 277 at 15.) However, surveys can be conducted on overcast days with light rain or moderate fog, because murrelets tend to call for longer periods and at higher rates during these conditions. (Pls.' Ex. 277 at 15.) Finally, the PSG Protocol recommends that surveys stations be located in areas that have an unobstructed view of the sky, and a maximum view of the canopy or stand being surveyed, because it is much easier to see the silhouette of a marbled murrelet flying directly overhead against the light-colored sky than it is to see the bird while looking down onto a dark background from the top of a ridge or a high point. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 6; Pls.' Ex. 274 at 6; Pls.' Ex. 277 at 6; Pls.' Ex. 291.)
31. Marbled murrelet surveys should begin 45 minutes before the official sunrise (as determined by the Nautical Almanac) and last until either 75 minutes after the official sunrise or for 15 minutes after the last detection, whichever is longer. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 6; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 6; Nelson, Tr. 8/16/94 at 29.) According to the PSG Protocol, there must be a minimum of six and a maximum of 30 days between survey visits at a particular station. (Pls.' Ex. 272 at 6; Pls.' Ex. 273 at 7; Pls.' Ex. 274 at 5; Pls.' Ex. 277 at 5.) At least two surveys must be conducted at each survey site after July 1, with at least one of these surveys conducted during the peak nesting season. (Pls.' Ex. 277 at 5.)
32. Marbled murrelet surveys are conducted by surveyors certified through a training process approved by the State of California. (Nelson, Tr. 8/16/94 at 79.) Surveyors are taught to record each marbled murrelet detection, whether auditory or visual, on a standardized data sheet. (Id. at 30.) Surveyors are not required to be 100 percent certain that they have detected a marbled murrelet to note a detection; rather, they are trained to record data whenever they think they may have detected a marbled murrelet. (Id. at 72; Moore, Tr. 8/17/94 at 186.)
33. Auditory detections include marbled murrelet vocalizations, such as detections of the bird's distinctive "keer" calls, wing beats, and "jet" sounds. (Nelson, Tr. 8/16/94 at 73.) A single keer call is important and should be noted by the surveyor. (Id. at 134-35; Moore, Tr. 8/17/94 at 185-86.) The sound of wing beats is made when marbled murrelets are coming into a nest. (Nelson, Tr. 8/16/94 at 73.) "Jet" sounds, which are made by a murrelet doing a "jet dive," or steep dive, have been made above known nest trees, and generally end below the tree canopy. (Id.)
34. According to the PSG Protocol, the "presence" of marbled murrelets can be determined upon the completion of four surveys per year for two consecutive years, where murrelets have been detected but instances of "occupied behavior," or observations of subcanopy behaviors in a stand, have not been observed.
(Pls.' Ex. 277 at 12.) The "absence" of marbled murrelets from a particular stand cannot be determined unless the number of surveys specified in the protocol are conducted for two consecutive years, and no birds are seen or heard. (Nelson, Tr. 8/16/94 at 40-41.)
35. Observations of "occupied behavior" indicate that marbled murrelets are probably using a stand for nesting purposes.
(Id. at 40.) The types of subcanopy behavior classified as "occupied behavior" include detections of marbled murrelets: (a) flying through, into, or out of the forest canopy; (b) landing in trees; (c) calling from a stationary location; and (d) circling below the canopy height.
(Pls.' Ex. 277 at 13.) Circling above the canopy is also common at "occupied" sites, however, the 1994 PSG Protocol recommends following up a single observation of circling above the canopy with additional surveys. (Id.)
36. Because marbled murrelets are so difficult to detect, and because studies have shown that "occupied behavior" is associated with probable nesting, a single observation of "occupied behavior" under the PSG Protocol is enough to classify a suitable stand of marbled murrelet habitat as being "occupied." (Nelson, Tr. 8/16/94 at 52.) Thus, even if only one instance of "occupied behavior" is noted during 300 surveys, a forest will be considered a probable marbled murrelet nest stand. (Id. at 52-53.)
E. Survey Efforts and Logging Operations ...