United States District Court for the District of Columbia
August 10, 2004.
COMMON SENSE SALMON RECOVERY, et al., Plaintiffs,
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
(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
2. Whether NMFS's listing of four West Coast Chinook salmon
was arbitrary and capricious, violated the ESA and was
procedurally defective (Cause of Action II).
Plaintiffs present their central challenge in their second
cause of action, which asserts that NMFS's listing of the four
Chinook salmon ESUs was arbitrary and capricious and in violation
of the ESA. Defendants' first response was that the Court should
stay its consideration of the validity of the listing of all but
the Upper Columbia River spring-run Chinook salmon because NMFS
conceded that the other three listings (of Puget Sound, Lower
Columbia River, and Upper Willamette spring-run Chinook) were
"flawed", after the decision of another court, see Defs.' Mem.,
at 2; see also Alsea Valley Alliance v. Evans, 161 F. Supp.2d 1154
(D.Or. 2001),*fn1 and because NMFS was conducting a review of those listings and the Hatchery Policy.
See Defs.' Mem., at 2. (Intervenor defendants did not object to
the stay request, but argued that the listings were proper under
the ESA and the APA.)
NMFS has now published a proposed revision of the Hatchery
Policy, see Endangered and Threatened Species: Proposed Policy
on the Consideration of Hatchery-Origin Fish in Endangered
Species Act Listing Determinations for Pacific Salmon and
Steelhead, 69 Fed. Reg. 31,354 (Jun. 3, 2004), and a proposed
rule to revise the listing status of 25 currently listed West
Coast salmon ESUs (and to list two additional salmon ESUs),
including the Puget Sound, Lower Columbia River, and Upper
Willamette spring-run Chinook salmon. See Endangered and
Threatened Species: Proposed Listing Determinations for 27 ESUs
of West Coast Salmonids, 69 Fed. Reg. 33,102 (Jun. 14, 2004).
Defendants state that "final decisions on the proposed listing
rule [must be made] by June 14, 2005," and they "expect to adopt
a final hatchery listing policy several months before issuing the
final listing revisions rule [because they] will use that final
policy in making [their] final listing decisions." See Defs.'
Notice of Recent Devels., Ex. A. Plaintiffs have not asserted
that they will suffer immediate harm if the listing of these
three Chinook salmon is allowed to stand pending the issuance of the revised Hatchery Policy and the listing determination. The
motion for a stay will accordingly be granted, to and including
June 14, 2005.
No party has moved for a stay as to the listing of the Upper
Columbia River spring-run Chinook salmon. This salmon, however,
is one of the 25 listed West Coast salmon currently under review
by the defendants, and it is a subject of the proposed rule
published at 69 Fed. Reg. 33,102. Moreover, although the listing
of this salmon is not directly implicated by the Alsea
decision, the Hatchery Policy, which is being revised, was
considered as part of this salmon's listing determination. See
Hatchery Policy, 64 Fed. Reg. at 14,325. In the absence of a
claim of immediate irreparable injury, the Court will also stay
consideration of the validity of the listing of the Upper
Columbia River spring-run Chinook salmon, until June 14, 2005. 3. Whether the NMFS has violated the ESA by allowing fishing
"through the adoption of regulations, incidental take permits
and/or the ESA consultation process" (Cause of Action
Plaintiffs' third cause of action appears at first glance to be
at odds with the first two, until one absorbs the essence of the
underlying dispute in this case, which appears to be a marine
fisheries version of "farmers versus cowmen." Plaintiffs are
concerned that NMFS is overprotecting salmon habitat (their
bailiwick) and allowing too much fishing (someone else's
problem). Thus, plaintiffs assert that the NMFS violated the ESA
by allowing fishing on listed salmon through "adoption of
regulations, incidental take permits and/or the ESA consultation process," Second Am. Compl., at ¶ 81, which have contributed or
will contribute to the further unnecessary decline of listed
Chinook salmon. They say that such actions constituted a failure
to use the NMFS's authority, as is required, to conserve these
fish, and that it constituted "an irretrievable commitment of
resources." Id., at ¶¶ 82-83. Because plaintiffs' second
amended complaint uses language in the third cause of action that
would support a claim under both the APA and § 1540(g)(1) of the
ESA, defendants offer two theories for dismissal: failure to
identify a final agency action that violated the ESA, and failure
to comply with the sixty-day notice requirement before filing a
a. Failure to identify a final agency action
Plaintiffs' third cause of action purports to seek review of an
agency decision under the Administrative Procedure Act,
5 U.S.C. § 701 et seq., but it must be dismissed for lack of subject
matter jurisdiction because it does not identify a "final agency
action." Claims under the ESA that challenge final agency actions
as to which there is no specific review provision are governed by
the APA. See Bennett v. Spear, 520 U.S. 154, 161-62 (1997).
"Whether there is a final agency action is . . . a jurisdictional
question[:] With a few exceptions, if there is no final agency
action, there is no basis for review of the government's decision
or policy." Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001). "For there to be `final' agency
action, there must, of course, be `agency action.'" Impro
Prods., Inc. v. Block, 722 F.2d 845, 848 (D.C. Cir. 1983). The
APA provides that "agency action" includes "the whole or a part
of an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act."
5 U.S.C. § 551(13).
Plaintiffs complain that, through the adoption of regulations,
the issuance of incidental take permits and the ESA consultation
Defendants have directly approved or consulted and
then allowed the take of the listed [C]hinook
salmon . . .
Defendants have authorized or allowed the harvest and
bycatch of these listed salmon . . . allowing tribal
and other fisheries, including commercial netting in
the river spawning areas. . . .
Second Am. Compl., at ¶¶ 80, 82.
Instead of pointing to any specific instance where defendants
have taken these complained-of actions, plaintiffs appear to
assert that the NMFS took final agency action by taking too long
to make effective the listing of the four salmon. See Pls.'
Opp'n, at 16 ("[A]n obvious example [of NMFS allowing `take' of
the four salmon is] the expansion of ocean fisheries, which would
require either `Take Permit' or Section 7 consultation*fn3 after listing [but] was frustrated through
the unprecedented `stay' of the listing for 60 days."). They note
that in the NMFS's final agency rule announcing the listing of
the four salmon, the agency stated that it was going to delay the
effective date of the listing for sixty days, explaining:
Given the cultural, scientific, and recreational
importance of [C]hinook salmon, and the broad
geographic range of these [C]hinook salmon ESUs, NMFS
recognizes that numerous parties may be affected by
this listing. Therefore, to permit an orderly
implementation of the consultation requirements and
take prohibitions associated with this action, this final listing will take effect
on May 24, 1999.
64 Fed. Reg. at 14,326. Plaintiffs claim that "[t]here is no
authorization in the ESA for a `stay' of listing, and there is no
precedent to delay a listing to allow further kill of a species,
given the conservation policies of this Act." Pls.' Opp'n, at 17.
What plaintiffs appear to be seeking in this cause of action is
"wholesale improvement" by court decree of the way in which the
NMFS makes and effectuates listing determinations. That approach
ignores what this Court cannot ignore, namely Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 891 (1990), which made it clear
that the final agency action requirement of the APA,
5 U.S.C. § 704, bars federal jurisdiction over suits for broad programmatic
b. Failure to comply with the sixty day notice requirement
To the extent this cause of action is brought under §
1540(g)(1)*fn4 of the ESA, it must be dismissed for failure
to comply with the ESA's sixty-day notice requirement. See
16 U.S.C. § 1540(g)(2)(A)(i) ("No action may be commenced under
subparagraph (1)(A) of this section . . . prior to sixty days
after written notice of the violation has been given to the
Secretary. . . .").
Interpreting a similar citizen suit sixty-day notice
requirement, the Supreme Court explained that "the notice and
60-day delay requirements are mandatory conditions precedent to
commencing suit[,]" which "a district court may not disregard
. . . at its discretion." Hallstrom v. Tillamook County,
493 U.S. 20, 31 (1989). Applying Hallstrom to the ESA, three
circuits have held that "failure to strictly comply with the
notice requirement acts as an absolute bar to bringing suit under
the ESA." Southwest Ctr. for Biological Diversity v. U.S. Bureau
of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998) (citation
omitted); see also Water Keeper Alliance v. U.S. Dep't of
Def., 271 F.3d 21, 29 (1st Cir. 2001); Hawksbill Sea Turtle v.
Fed. Emergency Mgmt. Agency, 126 F.3d 461, 471 (3d Cir. 1997). Plaintiffs did send a sixty-day notice letter to the Secretary
of the Department of Commerce and the Director of the NMFS. The
letter announced that
[t]he suit will challenge NMFS's failure to follow
proper procedure specified in the ESA and the APA
when it listed the [C]hinook salmon; NMFS's failure
to rely on the best scientific and commercial data
available; and NMFS's arbitrary and capricious
application of provisions of the ESA to the [C]hinook
Notice Letter, Defs.' Mot. Protective Order, Ex. 15, at 1. It
made no mention of the claim set forth in plaintiffs' third cause
of action, which concerns the "allow[ance of] fishing on listed
salmon through adoption of regulations, incidental take permits
and/or the ESA consultation process." This letter therefore
failed to satisfy the notice requirement as to this cause of
action, which, in so far as it asserts a claim under §
1540(g)(1), must be dismissed for lack of subject matter
4. Whether the NMFS failed to fulfill its duties under the
Magnuson-Stevens Act and Sustainable Fisheries Act (Cause of
Plaintiffs' fourth cause of action asserts that the defendants
"did not timely comply with the [Magnuson-Stevens and Sustainable
Fisheries Act's] requirement [of] adopt[ing] Management Plan
amendments and harvest regulations [by the] end of 1998, as required by the statute." Pls.' Opp'n, at 13. The
action contemplated by this claim (amendment of the Pacific Coast
Salmon Fishery Amendment Plan) was completed on October 20, 2000.
See Fisheries off West Coast States and in the Western
Pacific; West Coast Salmon Fisheries; Amendment 14, 65 Fed. Reg.
63,047, 63,048 (Oct. 20, 2000), and this claim is therefore moot.
If and to the extent plaintiffs seek to challenge Amendment 14
itself, they have not amended their complaint to do so, nor have
they demonstrated that they have satisfied the exhaustion
requirements of the Magnuson-Stevens Act. See
16 U.S.C. § 1855(f)(1).
5. Whether defendants have authorized salmon harvest and
predation on listed salmon without an adequate environmental
impact statement, in violation of NEPA (Cause of Action V).
Plaintiffs' fifth cause of action asserts that "Defendants'
actions to authorize harvest and bycatch of salmon listed for
protection under the ESA causes direct, indirect and cumulative
effects that have not been disclosed, analyzed, and discussed in
an adequate environmental impact statement pursuant to [the
National Environmental Policy Act ("NEPA")]." Second Am. Compl.,
at ¶ 89. "An agency's decision not to prepare an [environmental
impact statement ("EIS")] can be set aside only upon a showing
that it was `arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.'" Dep't of Transp. v.
Public Citizen, ___ U.S. ___, ___ (June 7, 2004) (quoting
5 U.S.C. § 706(2)(A)). "Under NEPA, an agency is required to provide an EIS only if it will be undertaking a `major Federal
actio[n],' which `significantly affect[s] the quality of the
human environment.'" Id. (quoting 42 U.S.C. § 4332(2)(C)).
"Persons challenging an agency's compliance with NEPA must
`structure their participation so that it . . . alerts the agency
to the [parties'] position and contentions,' in order to allow
the agency to give the issue meaningful consideration." Id.
(quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 553 (1978)).
Here, plaintiffs have failed to identify any specific action,
to say nothing of a "major Federal action," that has been taken
by the defendants to authorize the harvest or bycatch of listed
salmon. Nor have plaintiffs offered any evidence to show that
they alerted the defendants to their position and contentions
regarding a proposed major Federal action such that the
defendants could be said to have failed to properly consider
alternatives to that action that would mitigate the environmental
impact on listed salmon. Both parties submitted materials outside
the pleadings. After a thorough review of those materials, I find
that there is no genuine issue of material fact and, because
plaintiffs have failed to state a claim as to this cause of
action, that defendants are entitled to judgment as a matter of
law. See Fraternal Order of Police Dep't of Corr. Labor Comm.
v. Williams, ___ F.3d ___, ___ (D.C. Cir. July 20, 2004) (converting motion to dismiss to a summary judgment motion, where
both parties submitted materials outside the pleadings and the
district court relied on those materials in concluding that the
plaintiff had failed to state a claim).
An appropriate order accompanies this memorandum.