Alsea Valley Alliance v. Evans

• Decision Date: 10 September 2001
• Docket Number: No. 99-6265-HO.,99-6265-HO.
• Citation: 161 F.Supp.2d 1154
• Parties: ALSEA VALLEY ALLIANCE, and Mark Sehl, Plaintiffs, v. Donald L. EVANS, Secretary of the United States Department of Commerce; National Marine Fisheries Service; Penelope Dalton, NMFS Director; and William Stelle, NMFS Regional Director for the Northwest Region, Defendants.
• Court: U.S. District Court — District of Oregon

161 F.Supp.2d 1154

ALSEA VALLEY ALLIANCE, and Mark Sehl, Plaintiffs, v. Donald L. EVANS, Secretary of the United States Department of Commerce; National Marine Fisheries Service; Penelope Dalton, NMFS Director; and William Stelle, NMFS Regional Director for the Northwest Region, Defendants.

No. 99-6265-HO.

United States District Court, D. Oregon.

September 10, 2001.

COPYRIGHT MATERIAL OMITTED

Robin L. Rivett, Timothy Harris, Anne M. Hayes, Russell C. Brooks, Bellevue, WA, John M. Groen, Groen, Stephens & Klinge, Bellevue, WA, for plaintiffs.

Michael A. Gheleta, Department of Justice, Environment & Natural Resources Div., Sacramento, CA, Jean E. Williams, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Samuel D. Rauch, III, U.S. Department of Justice, Wildlife & Marine Resources Section, Washington, DC, for defendants.

ORDER

HOGAN, District Judge.

On August 10, 1998, the National Marine Fisheries Services ("NMFS") published its final rule listing the Oregon Coast Evolutionary Significant Unit ("ESU") coho salmon as "threatened" pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. Plaintiffs bring this action challenging the validity of the listing decision. Currently before the court are plaintiffs' motion (# 74) for summary judgment and defendants' cross motion (# 81) for summary judgment.

I. Background

In 1973, Congress enacted the ESA "to provide a program for the conservation of ... endangered and threatened species." 16 U.S.C. § 1531(b). The purposes of the ESA are "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 [these] purposes ...." Id. § 2(b).

The ESA also recognizes that conservation of listed species may be facilitated by artificial means. Specifically, the ESA defined the term "conservation" as:

...the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation ....

16 U.S.C. § 1532(3).

In addition, "if a species is listed under the ESA, the Secretary must not merely avoid elimination of that species, but is required to bring the species back from the brink sufficiently to obviate the need for protected status." Federation of Fly Fishers v. Daley, 131 F.Supp.2d 1158, 1163 (N.D.Cal.2000).

Section 4(a) of the ESA commits to the Secretary of Commerce ("Secretary") the responsibility of determining whether certain species are "endangered" or "threatened." The Secretary has delegated this authority to the NMFS.

An "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is defined as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20).

When determining whether a species is "endangered" or "threatened," the NMFS must consider five statutorily prescribed factors: 1) "the present or threatened destruction ... of its habitat"; 2) the "over-utilization" of the species by humans; 3)disease or predation pressures; 4) "the inadequacy of existing regulatory mechanisms"; and 5) "other natural or manmade factors affecting" the continued existence of the species. 16 U.S.C. § 1533(a). This determination is to be made "solely on the basis of the best scientific and commercial data available to [the Secretary]." 16 U.S.C. § 1533(b)(1)(A).

The ESA defines "species" to include "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." 16 U.S.C. § 1532(16) (emphasis added). Congress did not define the term "distinct population segment" ("DPS") and the ESA does not set forth any restrictive criteria for defining a DPS. See Southwest Center for Biological Diversity v. Babbitt, 980 F.Supp. 1080, 1083 (D.Ariz.1997).

Beginning in 1991, NMFS issued various policies that interpreted the ESA and its DPS provision, relevant to the Pacific salmon. NMFS eventually applied these policies to the coho salmon in its August 10, 1998, listing decision.

On November 20, 1991, NMFS issued its "Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon" (hereinafter the "ESU Policy"). 56 Fed.Reg. 58,612 (1991). In the ESU Policy, NMFS introduced the term "evolutionary significant unit" ("ESU") to interpret the ESA's meaning of "distinct population segment." 56 Fed. Reg. at 58,613 (Nov. 20, 1991). NMFS explained:

a stock of Pacific salmon will be considered a distinct population, and hence a "species" under the ESA, if it represents an Evolutionary significant unit (ESU) of the biological species. A stock must satisfy two criteria to be considered an ESU:

(1) It must be substantially reproductively isolated from other conspecific population units; and

(2) It must represent an important component in the evolutionary legacy of the species.

56 Fed.Reg. at 58,618.

NMFS states that the first criterion can be measured "by movements of tagged fish, recolonization rates of other populations, measurements of genetic differences between populations, and evaluations of the efficacy of natural barriers." Id.

The second criterion is concerned with the "ecological/genetic diversity" of the species as a whole. Id. NMFS states that the following questions are relevant in determining whether this criterion is met 1) is the population genetically distinct from other conspecific populations, 2) does the population occupy unusual or distinctive habitat, 3) does the population show evidence of unusual or distinctive adaptation to its environment. Id.

On April 5, 1993, the NMFS published its policy entitled "Interim Policy on Artificial Propagation of Pacific Salmon Under the Endangered Species Act" (the "Hatchery Policy"). 58 Fed.Reg. 17,573 (1993). The Hatchery Policy describes how the NMFS considers hatchery populations when making listing decisions about the Pacific salmon. The Hatchery Policy interprets the ESA as requiring NMFS to focus its recovery efforts on "natural populations." The Hatchery Policy builds upon this cornerstone interpretation with the position that "artificial propagation may represent a potential method to conserve listed salmon species when the artificially propagated fish are determined similar to the listed natural population in genetic, phenotypic, and life-history traits, and in habitat use characteristics." 58 Fed.Reg. at 17,573-74 (April 5, 1993) (emphasis added). Although hatchery populations may be included as part of a listed species, NMFS policy is that it should be done sparingly because artificial propagation could pose risks to natural populations.¹ Id. at 17,575. Thus, the Hatchery Policy states:

[I]f available information indicates that existing hatchery fish can be considered part of the biological ESU, a decision must be made whether to include them as part of the listed species. In general, such fish will not be included as part of the listed species. An exception may be made for existing hatchery fish if they are considered to be essential for recovery.

Id. at 17,575 (emphasis added).

NMFS excludes hatchery populations from its listing decision unless the hatchery population can be considered part of the ESU and the NMFS considers the hatchery population "essential to recovery." Id. at 17,575.² Although the phrase "essential to recovery" is not specifically defined, NMFS gives the examples of a natural population facing a "high, short-term risk of extinction, or if the hatchery population is believed to contain a substantial proportion of the genetic diversity remaining in the species." Id.

On July 25, 1995, NMFS completed a status review of west coast coho salmon and issued a proposed rule to list six ESU's of coho salmon as threatened. 63 Fed.Reg. at 42,587-88. One of the ESU's proposed as "threatened" by NMFS was the "Oregon Coast ESU." NMFS subsequently revoked this decision based partly on conservation measures in the Oregon Coastal Salmon Restoration Initiative and a Memorandum of Agreement between the NMFS and the State of Oregon that assured state protection of this species. 62 Fed.Reg. 24,588 (May 6, 1997). However, a lawsuit was filed in this district that challenged NMFS' decision not to list Oregon Coast coho as threatened. See Oregon Natural Resources Council v. Daley, 6 F.Supp.2d 1139 (D.Or.1998) (Stewart, J.) The court ultimately found that NMFS should not have considered the conservation measures in the state restoration initiative and the memorandum agreement with the state of Oregon and remanded to the agency to reconsider its decision. Id. at 1161.

Pursuant to court order, on August 10, 1998, NMFS issued a final rule listing the Oregon Coast coho ESU as threatened. 63 Fed.Reg. 42,587 (Aug. 10, 1998). However, within this ESU, NMFS only listed all "naturally spawned" coho inhabiting streams between Cape Blanco and the Columbia River. Id. In reaching this listing decision, NMFS applied its April 5, 1993 Hatchery Policy to the coho salmon. 63 Fed.Reg. 42,589. NMFS concluded that nine Oregon hatchery populations were part of the same Oregon Coast ESU as the natural populations. However, the hatchery populations were not included in the listing decision because the hatchery populations were not "deemed `essential' to recovery." Id. Although excluded...