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Carpenters Industrial Council v. Zinke

United States Court of Appeals, District of Columbia Circuit

April 11, 2017

Carpenters Industrial Council, et al., Appellants
v.
Ryan Zinke and James Kurth, Appellees Lewis County, a municipal corporation of the State of Washington, et al., Appellants

          Argued September 15, 2016

         Appeals from the United States District Court for the District of Columbia (No. 1:13-cv-00361)

          Mark C. Rutzick argued the cause and filed the briefs for appellants Carpenters Industrial Council, et al.

          Susan Elizabeth Drummond argued the cause for appellants Lewis County, et al. With her on the briefs was Ryan A. Smith.

          Michael T. Gray, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was John C. Cruden, Assistant Attorney General. Brian C. Toth, Attorney, entered an appearance.

          Before: Griffith, Kavanaugh, and Srinivasan, Circuit Judges.

          OPINION

          Kavanaugh, Circuit Judge.

         When the Government adopts a rule that makes it more difficult to harvest timber from certain forest lands, lumber companies that obtain timber from those forest lands may lose a source of timber supply and suffer economic harm. In recent years, that phenomenon has occurred in the Pacific Northwest. In this case, a lumber industry group has contested one such government action.

         In 2012, the U.S. Fish and Wildlife Service issued a Final Rule designating 9.5 million acres of federal forest lands in California, Oregon, and Washington as critical habitat for the northern spotted owl. To put the agency's action in perspective, the designated critical habitat area is roughly twice the size of the State of New Jersey. For Easterners, imagine driving all the way up and then all the way back down the New Jersey Turnpike, and you will get a rough sense of the scope of the critical habitat designation here. The critical habitat designation means that a huge swath of forest lands in the Pacific Northwest will be substantially off-limits for timber harvesting.

         Various lumber companies that obtain timber from those forest lands are members of a trade association known as the American Forest Resource Council. The Council sued the U.S. Fish and Wildlife Service to challenge the legality of the critical habitat designation.

         The threshold question is whether the Council has standing to challenge the critical habitat designation on behalf of its members. The District Court ruled that the Council lacked standing. We disagree. The Council has demonstrated a substantial probability that the critical habitat designation will cause a decrease in the supply of timber from the designated forest lands, that Council members obtain their timber from those forest lands, and that Council members will suffer economic harm as a result of the decrease in the timber supply from those forest lands. Therefore, in light of our decision in Mountain States Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996), we conclude that the Council has standing. We reverse the judgment of the District Court and remand the case for further proceedings.

         I

         In 1973, Congress passed and President Nixon signed the Endangered Species Act. The Act seeks to conserve animal species that are at risk of extinction. See 16 U.S.C. § 1531 et seq. The Act authorizes the Secretary of the Interior to list species that are endangered or threatened, and to protect those species' habitats and ecosystems. See id. § 1533. An agency within the Department of the Interior - the Fish and Wildlife Service - helps implement the Act and is responsible for listing species as endangered or threatened.

         When the Fish and Wildlife Service lists a species as endangered or threatened, it must also "designate any habitat" of the species "which is then considered to be critical habitat." Id. § 1533(a)(3)(A)(i). The Act defines "critical habitat" to include the "specific areas within the geographical area occupied by the species, at the time it is listed" or the "specific areas outside the geographical area occupied by the species at the time it is listed" if such areas are determined to be "essential for the conservation of the species." Id. § 1532(5)(A)(i)-(ii).

         Designation of land as critical habitat triggers certain consulting requirements under Section 7 of the Act. Any federal agency seeking to authorize, fund, or carry out an action on designated land must first consult with the Service to ensure that the action is "not likely to . . . result in the ...


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