## Facts

- The marbled murrelet is a threatened seabird that breeds in inland old-growth forests, typically laying a single egg on a moss-covered limb of a large tree.
- The species has low reproductive output and high nest predation, and loss of old-growth coastal forests has been a major driver of population decline.
- Pacific Lumber Company planned to log an old-growth stand known as Owl Creek.
- Environmental Protection Information Center (EPIC) alleged the planned logging would cause an unlawful “take” of marbled murrelets under Endangered Species Act (ESA) § 9 through “harm” and “harassment.”
- EPIC presented expert testimony and survey evidence at an eight-day bench trial that Owl Creek contained occupied breeding habitat and that logging would significantly impair murrelet breeding.
- The district court credited EPIC’s experts, found the planned logging would “harm” and “harass” murrelets by impairing breeding, and permanently enjoined logging in Owl Creek.
- Pacific Lumber appealed; federal defendants did not.

## Issues

1. Whether injunctive relief under the ESA requires evidence of past harm to a listed species, or whether a well-supported threat of future harm from habitat destruction that will impair breeding is sufficient.
2. Whether the district court properly admitted and relied on EPIC’s expert scientific evidence under Daubert, and whether the record supported findings of “harm” and “harassment” constituting a prohibited “take.”

## Decision

- The Ninth Circuit affirmed the permanent injunction.
- The court held the ESA permits injunctions based on a credible threat of future harm; proof of past harm is not a prerequisite.
- The court held the district court did not abuse its discretion in admitting EPIC’s expert testimony under Daubert.
- The court held the evidence supported the findings that logging Owl Creek would “harm” and “harass” murrelets by significantly impairing breeding habitat and breeding behavior.

## Legal Principles

- ESA § 9 prohibits a “take” of a threatened species, including “harm” and “harass” as defined by regulation.
- “Harm” includes habitat destruction or modification that actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding.
- Injunctive relief under the ESA is available to prevent threatened or imminent takes; courts need not wait for completed injury when reliable evidence shows the challenged conduct will cause a prohibited take.
- Scientific expert testimony in ESA take cases is reviewed for admissibility under Daubert, and trial courts have discretion to admit reliable methodology-based ecological evidence; disputes about assumptions typically go to weight, not admissibility.
- Appellate review defers to trial-court factfinding absent clear error and does not reweigh competing scientific evidence.

## Conclusion

The Ninth Circuit upheld a permanent injunction barring logging in occupied old-growth habitat because reliable expert evidence showed the planned habitat destruction would foreseeably and significantly impair marbled murrelet breeding, constituting an ESA “take” even before any nest or egg was destroyed.


Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996)