Environmental Protection Information Center v. Simpson Timber Co.

Opinion by Judge DAVID R. THOMPSON; Dissent by judge D.W. NELSON.

The Environmental Protection Information Center (“EPIC”) filed suit against the United States Fish and Wildlife Service (“FWS”) and Simpson Timber Company, Simpson Redwood Company and Arcata Redwood Company (“Simpson”). EPIC alleged that the FWS violated section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536 (1994), by refusing to reini-tiate consultation with itself about the effect that an incidental take permit issued to Simpson for the northern spotted owl *1075 might have on two other species-the marbled murrelet and the coho salmon. The marbled murrelet and the coho salmon were added to the threatened species list after the FWS issued the spotted owl permit to Simpson. EPIC sought an injunction to halt Simpson’s logging activities on its 380,000 acres of timberland in northern California until the FWS had reinitiated and completed the sought-after consultation. See 50 C.F.R. § 402.16 (2000).

The district court granted Simpson’s motion to dismiss the complaint for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). 1 The court held that the FWS had not retained sufficient discretionary-control…

dissenting:

This case concerns a federal agency’s affirmative duty under Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536 (1994), to ensure that it is not likely to jeopardize a threatened species before acting or authorizing private action. We decide what circumstances trigger the agency’s duty to consult with the Fish and Wildlife Service (“FWS”) about the environmental impact of its activities. An agency must reinitiate consultation where “discretionary Federal involvement or control over the action has been retained or is authorized by law and ... a new species is listed or critical habitat designated that may be affected by the identified action.” 50 C.F.R. § 402.16 (2000). In this case, FWS has substantial discretionary control over Simpson’s permit and two new species have been listed that may be harmed by Simpson’s activities pursuant to that permit. Moreover, FWS can exercise its discretion to benefit these species which, until now, was sufficient to trigger its duty to consult. See Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir.1995). The majority avoids this conclusion by creating a new requirement that the agency explicitly reserve the right to…