645 F.Supp.2d 929 (D.Or. 2007), Civ. 06-1493-ST, Trout Unlimited v. Lohn

Docket Nº:Civil 06-1493-ST.
Citation:645 F.Supp.2d 929
Opinion Judge:KING, District Judge:
Party Name:TROUT UNLIMITED, Pacific Rivers Council, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Native Fish Society, Oregon Natural Resources Council, UMPQUA Watersheds, and Coast Range Association, Plaintiffs, v. D. Robert LOHN, Northwest Regional Administrator of National Marine Fisheries Service, and Carlos M. G
Attorney:Patti Goldman, Jan Hasselman, Earthjustice, Seattle, WA, Stephanie Parent, Portland, OR, for Plaintiffs. Karin J. Immergut, United States Attorney, District of Oregon, Stephen J. Odell, United States Attorney's Office, Ronald J. Tenpas, Acting Assistant Attorney General, Jean E. Williams, Lisa L....
Judge Panel:STEWART, United States Magistrate Judge:
Case Date:July 13, 2007
Court:United States District Courts, 9th Circuit, District of Oregon
 
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645 F.Supp.2d 929 (D.Or. 2007)

TROUT UNLIMITED, Pacific Rivers Council, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Native Fish Society, Oregon Natural Resources Council, UMPQUA Watersheds, and Coast Range Association, Plaintiffs,

v.

D. Robert LOHN, Northwest Regional Administrator of National Marine Fisheries Service, and Carlos M. Gutierrez, Secretary of Commerce, United States Department of Commerce, Defendants

and

State of Oregon, and Alsea Valley Alliance, Intervenor-Defendants.

Civil No. 06-1493-ST.

United States District Court, D. Oregon.

July 13, 2007

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[Copyrighted Material Omitted]

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Patti Goldman, Jan Hasselman, Earthjustice, Seattle, WA, Stephanie Parent, Portland, OR, for Plaintiffs.

Karin J. Immergut, United States Attorney, District of Oregon, Stephen J. Odell, United States Attorney's Office, Ronald J. Tenpas, Acting Assistant Attorney General, Jean E. Williams, Lisa L. Russell, Coby Howell, U.S. Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, c/o U.S. Attorney's Office, Portland, OR, for Defendants.

ORDER

KING, District Judge:

The Honorable Janice Stewart, United States Magistrate Judge, filed Findings and Recommendation on July 13, 2007. All parties filed timely objections to the Findings and Recommendation. When either party objects to any portion of a magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate's report. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The matter is before this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b).

This court has, therefore, given de novo review of the rulings of Magistrate Judge Stewart. This court ADOPTS the Findings and Recommendation of Magistrate Judge Stewart dated July 13, 2007 in its entirety.

IT IS HEREBY ORDERED that Trout Unlimited's Motion for Summary Judgment (# 45) is GRANTED and State of Oregon's Motion for Summary Judgment (# 68), Federal Defendants' Amended Motion for Summary Judgment (# 77), and

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Alsea Valley Alliance's Motion for Summary Judgment (# 83) are DENIED.

DATED this 5th day of October, 2007.

FINDINGS AND RECOMMENDATIONS

STEWART, United States Magistrate Judge:

INTRODUCTION

Plaintiffs, Trout Unlimited, Pacific Rivers Council, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Native Fish Society, Oregon Natural Resources Council, Umpqua Watersheds, and Coast Range Association (collectively, " Trout Unlimited" ), seek review of the determination by the National Marine Fisheries Service (" NMFS" ) not to list Oregon Coast coho salmon under the Endangered Species Act, 16 USC §§ 1531-44 (" ESA" ). NMFS is the federal government agency to which the Secretary of Commerce has delegated responsibility for administrating the provisions of the ESA with regard to threatened and endangered marine species. See 16 USC § 1532(15); 50 CFR § 17.2.

NMFS has twice proposed to list the Oregon Coast coho salmon as a threatened species under the ESA, but has twice withdrawn the proposed listing at the urging of the State of Oregon. Initially, the State of Oregon developed the Oregon Coastal Salmon Restoration Initiative (" Oregon Plan" ) to encourage voluntary conservation and some future regulatory changes. In reliance on the Oregon Plan, NMFS withdrew its proposed listing. This Court upheld a challenge to that withdrawal decision. Oregon Natural Resources Council v. Daley, 6 F.Supp.2d 1139 (D.Or.1998) (" ONRC " ).

Heeding that decision, the NMFS then rejected the Oregon Plan as a basis to avoid an ESA listing and proposed listing the Oregon Coast coho as threatened. However, based in part on a new viability assessment prepared by the State of Oregon, it reversed course and withdrew its listing proposal. As a result, of 27 salmon and steelhead populations in the Pacific Northwest and California, the Oregon Coast coho is the only population not currently listed under the ESA. Trout Unlimited now challenges that withdrawal decision and requests: (1) a declaratory judgment that NMFS's determination not to list the Oregon Coast coho salmon is arbitrary, capricious, contrary to the best available science, and a violation of the ESA; (2) an order that NMFS issue a new final listing rule consistent with the ESA and the best available science rule within 60 days of the court's decision; (3) an award of reasonable attorneys' fees and costs; and (4) any additional relief the court deems just and proper.

Opposing Trout Unlimited are defendants D. Robert Lohn (" Lohn" ), the Northwest regional director of NMFS, Carlos M. Gutierrez (" Gutierrez" ), the Secretary of the United States Department of Commerce, both sued in their official capacity, as well as intervenor defendants the State of Oregon and Alsea Valley Alliance.

This action was originally filed in the United States District Court for the Western District of Washington and transferred to this court by Order of Judge R. Lesnik (docket # 24). This court has original jurisdiction pursuant to the citizen provision under the ESA, 16 USC § 1540(g)(1), as well as pursuant to 28 USC § 1331 under the Administrative Procedure Act, 5 USC § 706 (" APA" ).

Trout Unlimited has filed a Motion for Summary Judgment (docket # 45) and, in turn, all the defendants have filed Cross-Motions for Summary Judgment (docket 68, 77, 83). For the reasons below, Trout Unlimited's motion should be granted

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and defendants' cross-motions should be denied.

BACKGROUND

Congress enacted the ESA in 1973 " to provide a means whereby the ecosystems upon which endangered and threatened species may be conserved [and] to provide a program for the conservation of such endangered species and threatened species." 16 USC § 1531(b). The ESA's protections apply only to species that are listed as threatened or endangered. A species is " endangered" when it " is in danger of extinction throughout all or a significant portion of its range" and is " threatened" when it is likely to become endangered within the foreseeable future. 16 USC § 1532(6) & (20). Thus, a species is threatened if it is likely to qualify for endangered status within the foreseeable future.

The ESA charged the Secretary of Commerce (" Secretary" ) with listing marine and anadromous species. The Secretary has delegated those responsibilities to NMFS. 50 CFR § 424.01(b). The ESA requires the Secretary to determine whether any species is endangered or threatened " because of any" of the following five factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

16 USC § 1533(a)(1).

This determination is to be made:

solely on the basis of the best scientific and commercial data available to [the Secretary] after conducting a review of the status of the species and after taking into account those efforts, if any, being made by a State or foreign nation ... to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction or on the high seas.

16 USC § 1533(b)(1)(A).

In addition, the Secretary is required to consult with the affected states when considering whether to list a species as endangered or threatened and to " tak[e] into account those efforts ... being made by any State ... to protect such species" under existing " conservation practices." 16 USC § 1533(b)(5)(A)(i) & (ii).

Any interested person may petition to list a species as threatened or endangered. 16 USC § 1533(b)(3)(A). If the Secretary finds that the petitioned action may be warranted, he or she must " promptly commence a review of the status of the species concerned," id., which typically entails convening a biological review team (" BRT" ) of technical experts from several federal agencies to compile the best available science on the species' status. Within 12 months after receiving the petition, the Secretary must make a finding that (1) the listing is or is not warranted, or (2) at the present time the listing is warranted but precluded. 16 USC § 1533(b)(3)(B).

If the Secretary finds that the listing is warranted, " a general notice and the complete text of a proposed regulation to implement [the decision]" is published in the Federal Register. 16 USC § 1533(b)(3)(B)(ii); see also 16 USC § 1533(b)(5)(A)(i) (general notice and text of the proposed regulation must be published not less than 90 days before the effective date of the regulation).

Within one year after publication of the proposed regulation, the Secretary must make a final decision whether to place the

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species on the endangered or threatened species list. 16 USC § 1533(b)(6)(A). The Secretary can invoke one six-month extension if " there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination ... concerned." 16 USC § 1533(b)(6)(B)(i).

Once a species is listed, various safeguards prevent activities that will cause harm to members of the species or that will jeopardize the survival and recovery of the species. 16 USC §§ 1536, 1538. The ESA's ultimate goal is recovery of listed...

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