An environmental group, the Forest Conservation Council (FCC), filed suit against Rosboro Lumber Company to stop it from building a proposed access road and subsequently clearcutting forty acres of land, which allegedly threatened a pair of spotted owls, a threatened species. Both parties moved for summary judgment. The district court granted Rosboro's motion and denied FCC's motion. FCC appealed.
In May 1992, Rosboro applied to the Oregon Department of Forestry (ODF) for a permit to clearcut on private lands. Rosboro noted in its application that the activity would occur in an area in which there was a threatened or endangered species. Although ODF granted the permit, it noted that their permit alone would not necessarily satisfy the requirements of the Endangered Species Act (ESA).
Rosboro also needed permission from the Bureau of Land Management (BLM) to build an access road across BLM land to get to the timber. BLM advised Rosboro that the project "may result in an incidental take of the Swartz Creek owl pair" and that Rosboro needed to apply for an incidental take permit from the U.S. Fish and Wildlife Service (FWS). Rosboro never applied for the incidental take permit but subsequently built the access road.
FCC filed this suit to enjoin Rosboro from its proposed clearcutting activities, alleging the clearcutting constitutes an illegal "take" under the ESA without a permit. The relevant section of the ESA states that it is unlawful to "take" any endangered or threatened species. "Take" includes any activity that "harms" such species. The specific issue before the court was the scope of the term "harm."
Relying on the Secretary of the Interior's definition of "harm" as "an act which actually kills or injures wildlife," Rosboro contended that the definition only contemplates past or current injuries, not future injuries, even when they are imminent. The Ninth Circuit disagreed.
The Ninth Circuit looked to the statutory language, the statutory purpose, and other provisions of the ESA and concluded that "harm" includes future imminent injuries. The court relied on legislative history for the proposition that "take" should be defined in the broadest sense possible. The court also noted that the stated purpose of the ESA is to conserve endangered species and provide a program in which to accomplish that goal. Forcing plaintiffs to wait until the damage or extinction had occurred would be contrary to that purpose, as it would "render their claims moot before they become ripe." The court next looked to the overall structure of the ESA and concluded that the injunctive relief provisions contemplate future actions. Finally, the court held its interpretation was consistent with existing case law.
The district court had ruled that habitat modifications that merely retard recovery are not actionable under the ESA. The Ninth Circuit expressly decided not to address this issue because FCC had supplied adequate evidence of actual injury to the owl pair.
The district court's granting of summary judgment in favor of Rosboro was reversed and the case was remanded to the district court.