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 ...