In Marbled Murrelet the Ninth Circuit affirmed the issuance of a permanent injunction to halt the logging of coastal old-growth forests which were the nesting ground of the marbled murrelet, an endangered species. The court held that the Endangered Species Act (ESA) allowed the issuance of a permanent injunction when a threat of future harm is "reasonably certain."
The Pacific Lumber Company (Pacific) desired to log an old-growth forest on the coast of California known as Owl Creek. However, there was evidence of marbled murrelets in the area: Pacific recorded over one hundred murrelet sitings. Despite repeated denials of a permit to log Owl Creek, Pacific proceeded to log part of the area. The Environmental Protection Information Center (EPIC) brought suit to enjoin Pacific from continued logging of Owl Creek. The district court found that the proposed logging of Owl Creek would result in "harm" and illegal "takes" of marbled murrelets under the ESA. The court consequently enjoined the logging of Owl Creek. Pacific appealed and the Ninth Circuit affirmed the lower court decision.
Pacific argued that the ESA only allowed an injunction to be issued when there was evidence of past or present harm to a member of the species, not when there was only evidence of a threat of future harm. The Ninth Circuit rejected this argument, reasoning that the plain language showed that "harass" in the definition of "take" means "an intentional or negligent act or omission which creates the likelihood of injury to wildlife." Pacific argued that in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court said that the amendments in 1981 to the ESA emphasized "that actual death or injury of a protected animal is necessary for a violation" and therefore the mere threat of injury did not constitute a violation of the ESA. The court rejected this argument on the basis that this wording was a note in the case, and that the Secretary inserted the "actual death or injury" requirement only to ensure that no one would read "harm" as only habitat modification. The court therefore held that evidence of a threat of future harm was sufficient for it to order an injunction.
Pacific next challenged the sufficiency of the evidence presented in support of the injunction against further logging by raising a "Daubert challenge" against the evidence. The court, however, quickly dismissed this challenge reasoning that because Pacific failed to request a ruling on their objection to the evidence in the trial court, Pacific waived its right to raise the issue of admissibility on appeal. By not asking for a timely ruling on their objection Pacific waived its right to challenge the validity of the evidence even if the evidence was unreliable. The court reasoned that to allow Pacific to challenge the sufficiency of the evidence for the first time in the appellate court would give them an unfair advantage over the appellees. If the trial court had ruled on the objections then EPIC could have had the opportunity to lay a better foundation for its evidence. Therefore to let Pacific raise the challenge in the appellate court would deprive EPIC of its right to lay a better foundation for its evidence. Thus the Ninth Circuit held Pacific waived its right to appeal the sufficiency of the evidence.
Pacific then argued that impairing the breeding of the marbled murrelet was legally insufficient to qualify as "harm" under the ESA. Rather, Pacific argued, impaired breeding is "harm" to the whole population, and that the ESA required there to be harm to an actual member of the species. The court held that there was no basis for this argument. They pointed to the Sweet Home decision, which upheld the Secretary's definition of harm, which includes "significant modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Therefore, the Ninth Circuit held that impaired breeding is "harm" under the ESA.
Finally, the court examined the sufficiency of the evidence to show future harm. The court noted that there were significant sitings of marbled murrelets by Pacific, and several experts testified that it was probable that Pacific's proposed activities would harm the marbled murrelets. Thus, the court found sufficient evidence to show the likelihood of future harm, and affirmed the lower court's decision to enjoin the logging.