The United States District Court for the District of Oregon dismissed claims brought by environmental organizations under section 9 of the Endangered Species Act (“ESA”) to prevent unlawful take of marbled murrelets (brachyramphus marmoratus). Cascadia Wildlands v. Kitzhaber, 2012 U.S. Dist. LEXIS 166966, at *2 (D. Or. Nov. 27, 2012) (pdf). Plaintiffs alleged that defendants, including individual members of the Oregon Board of Forestry and the State Land Board, violated the ESA by (1) authorizing timber sales on specific tracts of forestland, (2) approving forest management plans, implementation plans, and annual operation plans that allow increased logging, which cause unpermitted take of marbled murrelets, and (3) approving “take avoidance” plans that result in unpermitted take of marbled murrelets. Id.  

The court dismissed the claims against members of the Oregon Board of Forestry on the grounds of absolute legislative immunity, meaning that the members were immune from civil suits because their actions were made in their official lawmaking capacity. Id.at 9. Plaintiffs had asserted that defendants had not met their burden of establishing that the board members’ actions were in fact legislative. Id.at 11. In rejecting this assertion, the court held that the board members’ approval of forest management plans constituted legislative activity because the actions involved the formulation of a broad policy, applied to the general public, were legislative in character, and bore the hallmark of traditional legislation. Id.at 12-14 (citing Kaahumanu v. Cnty. of Maui, 315 F.3d 1215, 1220 (9th Cir. 2003)). 

The court also dismissed claims against individual members of the State Land Board and the Director of the Department of State Lands, holding that plaintiffs had failed to allege facts sufficient to state a claim. Id.at 19-21. Specifically, the court held that the actions of defendants had not proximately caused the alleged harm to the marbled murrelets. Id. 

The court held for plaintiffs with respect to their claims against the State Forester and several District Foresters, finding that plaintiffs had presented facts sufficient to allege that these individuals proximately caused the take of marbled murrelets by approving “take avoidance” plans, specifying timber for sale, and approving forest management plans. Id.at 23. Plaintiffs have 20 days leave to file an amended complaint in accordance with the court’s opinion. Id.at 30.