Forest Conservation Council v. Rosboro Lumber Company

Plaintiff-Appellant Forest Conservation Council (“FCC”) appeals the district court’s order granting summary judgment in favor of Defendant-Appellee Rosboro Lumber Company (“Rosboro”). FCC sued Rosboro under the citizen suit provision of the Endangered Species Act, 16 U.S.C. § 1540 (g)(1)(A), for violating 16 U.S.C. § 1538 (a)(1)(B), which prohibits the “taking” of a federally listed threatened species without a permit from the United States Fish and Wildlife Service. The district court concluded that FCC’s claim of a future injury to a pair of Northern Spotted Owls was insufficient to establish an actionable taking under 16 U.S.C. § 1538 (a)(1)(B). We have jurisdiction under 28 U.S.C. § 1291 . We reverse and remand.

BACKGROUND

On May 2, 1992, Defendant-Appellee Ros-boro Lumber Company applied to the Oregon Department of Forestry for a permit to harvest timber on private lands in Lane County, Oregon. The application indicated that Rosboro planned to clearcut approximately 40 acres of timber. The application also noted that the activity would occur in an area that was a “threatened or endangered species site.”

The Oregon Department of Forestry granted the permit, and prepared a…