358 F.3d 1181 (9th Cir. 2004), 01-36071, Alsea Valley Alliance v. Department of Commerce

Docket Nº:01-36071, 01-36154.
Citation:358 F.3d 1181
Party Name:ALSEA VALLEY ALLIANCE; Mark Sehl, Plaintiffs-Appellees, v. DEPARTMENT OF COMMERCE, being sued as William M. Daley; National Marine Fisheries Service; Penelope D. Dalton, Director NMFS; William Stelle, Jr., Defendants-Appellees, Oregon Natural Resources Council; Pacific Rivers Council; Pacific Coast Federation of Fishermen's Association, Inc.; Insti
Case Date:February 24, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1181

358 F.3d 1181 (9th Cir. 2004)

ALSEA VALLEY ALLIANCE; Mark Sehl, Plaintiffs-Appellees,

v.

DEPARTMENT OF COMMERCE, being sued as William M. Daley; National Marine Fisheries Service; Penelope D. Dalton, Director NMFS; William Stelle, Jr., Defendants-Appellees,

Oregon Natural Resources Council; Pacific Rivers Council; Pacific Coast Federation of Fishermen's Association, Inc.; Institute for Fisheries Resources; Audubon Society of Portland; Coast Range Association; Siskiyou Regional Education Project; Sierra Club, Defendants-Intervenors-Appellants.

Alsea Valley Alliance; Mark Sehl, Plaintiffs-Appellants,

v.

Department of Commerce, being sued as William M. Daley; National Marine Fisheries Service; William T. Hogarth, Director NMFS; D. Robert Lohn, Defendants-Appellees,

Oregon Natural Resources Council; Pacific Rivers Council; Pacific Coast Federation of Fishermen's Association, Inc.; Institute for Fisheries Resources; Audubon Society of Portland; Coast Range Association; Siskiyou Regional Education Project, Defendants-Intervenors-Appellees,

and

Sierra Club, Defendant-Intervenor.

Nos. 01-36071, 01-36154.

United States Court of Appeals, Ninth Circuit

February 24, 2004

Argued and Submitted May 8, 2003.

Page 1182

Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA, for the plaintiffs-appellees-appellants.

Ellen J. Durkee, U.S. Dept. of Justice, Washington, D.C., for the federal appellees.

Patti Goldman, Earthjustice Legal Defense Fund, for the defendants-intervenors-appellees-appellants.

Galen G. Schuler, Perkins Coie, Seattle, WA; Peter J. Ampe, Assistant Attorney General, Denver, CO, for the amici curiae.

Page 1183

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. CV-99-06265-HO.

Before LAY,[*] WALLACE, and TALLMAN, Circuit Judges.

WALLACE, Senior Circuit Judge.

Oregon Natural Resources Council and several other organizations (collectively Council) appeal from an order invalidating a National Marine Fisheries Service (Service) final rule and remanding to the Service for further consideration (Remand Order). The order that allowed the Council to intervene for purposes of bringing this appeal (Intervention Order) is challenged by Alsea Valley Alliance (Alsea), and opposed by the government on jurisdictional grounds, in a separately docketed companion case. We lack jurisdiction over both appeals, and accordingly we dismiss them.

I.

Acting under authority derived from the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, and pursuant to several of its own policies, the Service promulgated a final rule designating as "threatened" the "naturally spawned" populations of Oregon coast "Evolutionarily Significant Unit" (ESU) coho salmon, but excluding "hatchery spawned" populations from the "threatened" listing. See Threatened Status for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon, 63 Fed.Reg. 42,587 (Aug. 10, 1998) (to have been codified at 50 C.F.R. pt. 227 (redesignated as pt. 223)). Alsea brought suit in federal court seeking in part to have the ESA listing overturned as invalid, and Alsea prevailed on summary judgment. Alsea Valley Alliance v. Evans, 161 F.Supp.2d 1154, 1163 (D.Or.2001). According to the district court, "[t]he central problem with the [Service] listing decision of August 10, 1998, is that it makes improper distinctions, below that of a [distinct population segment (DPS) ], by excluding hatchery coho populations from listing protection even though they are determined to be part of the same DPS as natural coho populations." Id. at 1162. "Listing distinctions below that of subspecies or a DPS of a subspecies," the court continued, "are not allowed under the ESA." Id. The district court thus ruled that distinguishing between "hatchery spawned" and "naturally spawned" coho salmon was arbitrary and capricious. Id. at 1163.

In granting Alsea summary judgment, the district court remanded the case to the Service for additional consideration consistent with its decision. Id. at 1163-64. The Service was "further directed to consider the best available scientific information, including the most recent data, in any further listing decision concerning the Oregon coast coho salmon." Id. at 1164.

Instead of contesting the Remand Order on appeal, the...

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