849 F.2d 1241 (9th Cir. 1988), 87-3606, Northwest Environmental Defense Center v. Gordon

Docket Nº:87-3606.
Citation:849 F.2d 1241
Party Name:NORTHWEST ENVIRONMENTAL DEFENSE CENTER, et al., Plaintiffs-Appellants, v. William G. GORDON, et al., Defendants-Appellees, and State of Oregon, et al., Defendants-Intervenors-Appellees.
Case Date:June 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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849 F.2d 1241 (9th Cir. 1988)



William G. GORDON, et al., Defendants-Appellees,


State of Oregon, et al., Defendants-Intervenors-Appellees.

No. 87-3606.

United States Court of Appeals, Ninth Circuit

June 23, 1988

Argued and Submitted May 3, 1988.

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Linda K. Williams, Portland, Or., for plaintiffs-appellants.

M. Alice Thurston, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Michael D. Reynolds, Asst. Sol. Gen., State of Or., Salem, Or., for defendants-intervenors-appellees.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE and REINHARDT, Circuit Judges, and HARDY, [*] District Judge.

REINHARDT, Circuit Judge:

Plaintiffs-appellants Northwest Environmental Defense Center, Oregon Trout, Inc., and Arthur Burns (collectively "NEDC") brought this action against several federal agencies 1 to challenge the management measures governing the 1986 salmon fishing season and the constitutionality of the composition of the Pacific Fishery Management Council. Because the 1986 season concluded before the case was decided, the district court dismissed the case as moot. NEDC appeals from that dismissal. Because we find that NEDC's action is not moot, we reverse and remand the case to the district court for consideration on the merits.


The federal government regulates fisheries under the Fishery Conservation and Management Act of 1976 (Magnuson Act), 16 U.S.C. Secs. 1801 et seq. (1982). The statute establishes eight regional fishery

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management councils, including the Pacific Fishery Management Council ("PFMC") which encompasses California, Oregon, Washington, and Idaho. Id. Sec. 1852(a)(6). The PFMC and the other councils prepare fishery management plans ("FMPs") for the fisheries in their areas that require conservation and management; the FMPs are approved and implemented by the Secretary of Commerce. See id. Secs. 1852-1855. Amendments to the FMPs undergo the same review and approval process as the FMPs themselves. See id. Sec. 1854.

The PFMC formulated a fishery management plan for the ocean commercial and recreational salmon fisheries in 1978; the FMP was approved and implementing regulations were issued by the National Marine Fisheries Service. 43 Fed. Reg. 15629 (Apr. 14, 1978). In 1984, the PFMC amended the salmon FMP by adopting a multiyear management plan for the salmon fisheries, known as the Framework Amendment. 49 Fed. Reg. 43679 (Oct. 31, 1984) (final rule) (codified at 50 C.F.R. Part 661 (1987)). Under the Framework Amendment, certain salmon management measures are fixed and cannot be changed without amending the FMP; others are flexible and can be changed by the Secretary of Commerce annually or during the fishing season in accordance with the procedures set out in the Framework Amendment. 49 Fed. Reg. 32414, 32414 (Aug. 14, 1984) (proposed rule). 2

The management measures at issue in this case involve coho salmon, which are divided into two groupings or "stocks": Oregon coastal coho, which are largely wild, and Columbia River coho, which are largely hatchery fish. Both these stocks exist in three-year cycles, hatching in fresh waters, maturing in ocean waters, and returning to their native fresh waters to spawn in their third year. The two stocks are managed as one, because they are inextricably mixed in the ocean fisheries. However, the Columbia River stock is managed "for full utilization of hatchery production," while the Oregon coastal stock is managed so as to rebuild the population of naturally-spawning adults. 51 Fed.Reg. 16520, 16522 (May 5, 1986) (1986 fishery management measures). Because that population has been depleted in recent years, the Framework Amendment established a rebuilding schedule for naturally-spawning Oregon...

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