United States Court of Appeals, District of Columbia Circuit
September 15, 2016
from the United States District Court for the District of
Columbia (No. 1:13-cv-00361)
C. Rutzick argued the cause and filed the briefs for
appellants Carpenters Industrial Council, et al.
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.
Kavanaugh, Circuit Judge.
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
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.
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
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.
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.
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).
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