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August 10, 2004.

DONALD L. EVANS, Secretary, U.S. Department of Commerce, et al., Defendants, v. NATIONAL WILDLIFE FEDERATION, et al. Intervenor Defendants.

The opinion of the court was delivered by: JAMES ROBERTSON, District Judge


Common Sense Salmon Recovery, a non-profit group, and four of its member organizations (collectively "CSSR"), allege violations of the Endangered Species Act ("ESA"), the Magnuson-Stevens Act, the Sustainable Fisheries Act ("SFA"), and the National Environmental Policy Act ("NEPA") in connection with the Commerce Department's National Marine Fisheries Service ("NMFS") listing of four types of West Coast Chinook salmon as threatened or as endangered. National Wildlife Federation, also a non-profit group, and a coalition of environmental and fisheries organizations have intervened on the side of the government. Amicus curiae submissions on the plaintiffs' side have been filed by three Washington state counties, the Pacific Legal Foundation, and others. All of the parties have moved for summary judgment, and the government has moved for a partial stay. For the reasons stated below, the partial stay motion will be granted, and the rest of the case (that which is not stayed) will be dismissed.


  The Endangered Species Act, 16 U.S.C. § 1531 et seq., was enacted "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the [international conservation] treaties and conventions" to which the United States is a party. 16 U.S.C. § 1531(a), (b). The Act requires appropriate agencies, including NMFS, to promulgate regulations for identifying species that are subject to "present or threatened destruction, modification, or curtailment of its habitat or range; . . . overutilization for commercial, recreational, scientific, or educational purposes; . . . disease or predation; . . . the inadequacy of existing regulatory mechanisms; or . . . other natural or manmade factors affecting its continued existence." Id. § 1533(a)(1). When a species is found to meet such criteria, the responsible agency informs the Secretary of the Interior, who then "lists" that species in accordance with the terms of the ESA. Id. § 1533(a)(2). An endangered or threatened species determination must be based "solely on the . . . best scientific and commercial data available . . . [after] a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species." Id. § 1533(b)(1)(A). Concurrent with such a determination, the agency shall "designate any habitat of such species which is then considered to be critical habitat." Id. § 533(a)(3)(A)(i).

  "Species" is a legislatively defined term that includes "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). An endangered species is one that is "in danger of extinction throughout all or a significant portion of its range," id. § 1532(6), and a threatened species is one that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

  Thirteen years ago, the NMFS issued a "[n]otice of interim policy" to announce how it would apply the definition of species in evaluating Pacific salmon stocks for listing under the ESA:
A stock of Pacific salmon will be considered a distinct population, and hence a species for purposes of listing under the ESA, if it represents an evolutionarily significant unit (ESU) of the biological species. A stock must satisfy two criteria to be considered an ESU:
(1) It must be reproductively isolated from other conspecific population units; and
(2) It must represent an important component in the evolutionary legacy of the species.
Interim Policy on Applying the Definition of Species under the Endangered Species Act to Pacific Salmon, 56 Fed. Reg. 10,542, 10,543 (Mar. 13, 1991). NMFS placed this interim policy in effect until revised or superseded, solicited written comments, and, after receiving twenty-one comments, announced its final policy on November 20, 1991. See id.; Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon ("ESU Policy"), 56 Fed. Reg. 58,612 (Nov. 20, 1991).
  Shortly thereafter, and about eleven years ago, NMFS issued its Interim Policy on Artificial Propagation of Pacific Salmon Under the Endangered Species Act, 58 Fed. Reg. 17,573 (Apr. 5, 1993) ("Hatchery Policy"). Like the ESU Policy, this one was also placed into effect until revised or superseded. The Hatchery Policy (which has not been revised or superseded) explains how NMFS deals with artificial propagation — i.e. hatchery propagation — when defining ESUs and when making listing decisions about Pacific salmon. See id.; Defs.' Mem., at 10. The Hatchery Policy states in part:
If available information indicates that either (1) the hatchery population in question is of a different genetic lineage than the listed natural populations, (2) artificial propagation has produced appreciable changes in the hatchery population in characteristics that are believed to have a genetic basis, or (3) there is substantial uncertainty about the relationship between existing hatchery fish and the natural population, the existing hatchery fish will not be considered part of the biological ESU and will not be included as part of the listed species. In this case, direct take of fish from the listed species for broodstock would not be permitted, and hatchery operations would need to be consistent with ESA requirements. . . .
58 Fed. Reg. at 17,575.

  After announcing the Hatchery Policy, NMFS initiated a comprehensive status review for populations of Pacific salmon in Washington, Oregon, Idaho, and California that were not otherwise undergoing status reviews at that time. See 59 Fed. Reg. 46,808 (Sept. 12, 1994). On March 9, 1998, NMFS announced that it had completed its review and proposed the listing as threatened or endangered species seven ESUs of West Coast Chinook salmon. See 63 Fed. Reg. 11,482 (Mar. 9, 1998). A year later, after receiving comments, NMFS issued its final rule, concluding that four Chinook salmon ESUs warranted protection and should be listed: the Puget Sound Chinook salmon in Washington, Lower Columbia River Chinook salmon in Washington and Oregon, and Upper Willamette spring-run Chinook salmon in Oregon as threatened species; and the Upper Columbia River spring-run Chinook salmon in Washington as an endangered species. See 64 Fed. Reg. 14,308 (Mar. 24, 1999). The plaintiffs in this case, whose interests may broadly be characterized as those of builders, realtors, farmers, and cattlemen aggrieved by what they consider the over-protection of salmon habitat, initiated this action on May 4, 1999. Their primary assertion is that the listing of these four salmon ESUs violated the Administrative Procedure Act ("APA").


  Agency actions are reviewed under the APA, which authorizes courts to set them aside if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "For challenges to an agency's construction of the statutes or regulations that it administers . . . the Court's review must be particularly deferential[:] The Court must defer to the agency's interpretation of a statute that it implements `so long as it is reasonable, consistent with the statutory purpose, and not in conflict with the statute's plain language.'" Davis v. Latschar, 202 F.3d 359, 364 (D.C. Cir. 2000) (quoting OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 814 (D.C. Cir. 1998)); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 845 (1984). "The Court's `task is to determine whether the agency's decisionmaking was reasoned, . . . i.e., whether it considered relevant factors and explained the facts and policy concerns on which it relied, and whether those facts have some basis in the record.'" Davis, 202 F.3d at 365 (quoting Nat'l Treasury Employees Union v. Horner, 854 F.2d 490, 498 (D.C. Cir. 1988)). 1. Whether NMFS's adoption of the ESU Policy violated the APA (Cause of Action I).

  Plaintiffs' first cause of action presents a threshold challenge to the ESU Policy that was a building block of NMFS's listing decision, asserting that the ESU Policy was not adopted through notice and comment rulemaking as required by the APA. See Pls.' Second Am. Compl. ¶ 75.

  This challenge is procedurally barred. The ESU Policy was adopted in 1991, and the first cause of action, filed eight years later in 1999, was untimely when filed under the general six-year statute of limitations applicable to suits against the United States. See 28 U.S.C. § 2401(a); Kennecott Utah Copper Corp. v. U.S. Dep't of Interior, 88 F.3d 1191, 1213-14 (D.C. Cir. 1996) (stating that the appropriate way to challenge a longstanding regulation as violative of a statute is to file a petition for amendment or rescission and then challenge the denial of that petition); Defenders of Wildlife v. Norton, 257 F. Supp.2d 53, 66 n. 11 (D.D.C. 2003).

  Moreover, regardless of whether the policy was a substantive rule requiring notice and comment rulemaking before promulgation, see 5 U.S.C. § 553, or an "interpretative rule[], general statement[] of policy, or rule[] of agency organization, procedure or practice" exempted from these requirements, see id. § 553(b), it was promulgated after a formal notice-and-comment opportunity. See 56 Fed. Reg. 10,542, (Mar. 13, 1991) (Notice of Interim Policy); 56 Fed. Reg. 58,612 (Nov. 20, 1991) (Notice of Policy).

  2. Whether NMFS's listing of four West Coast Chinook salmon was arbitrary and capricious, violated the ESA and ...

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