Babbitt

Pacific Lumber Company wanted to harvest trees on a portion of its land in an old-growth forest known as Owl Creek. The Environmental Protection Information Center (EPIC) brought suit in its own name and in the name of the marbled murrelet to enjoin Pacific Lumber’s proposed logging plan. EPIC' alleged that the logging would result in a “take” of marbled murrelets in violation of the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. After an eight-day bench trial, the district court issued a permanent injunction enjoining Pacific Lumber from harvesting the trees.

In this appeal, Pacific Lumber challenges the district court’s injunction on the ground that the Supreme Court’s opinion in Babbitt v. Sweet Home Chap. of Communities, for a Great Oregon, — U.S. -, 115 S.Ct. 2407 , 132 L.Ed.2d 597 (1995), requires evidence of past harm to a protected species before an injunction may issue, and the district court’s injunction was founded upon a threat of future harm. Pacific Lumber also contends the evidence was insufficient to support the findings of harassment and harm because EPIC’s scientific evidence of impaired breeding was unreliable under Daubert v. Merrell Dow…