Oregon Natural Resources Council, Inc. v. Kantor
| Citation | 99 F.3d 334 |
| Decision Date | 31 October 1996 |
| Docket Number | No. 96-15046,96-15046 |
| Parties | , 27 Envtl. L. Rep. 20,469, 96 Cal. Daily Op. Serv. 7969, 96 Daily Journal D.A.R. 13,233 OREGON NATURAL RESOURCES COUNCIL, INC.; Oregon Trout; Coast Action Group; Coast Range Association; Environmental Protection Information Center; Garcia River, Friends of the; Klamath Forest Alliance; Marbly Mountain Audubon; Mendocino Environmental Center; Mt. Shasta Area Audubon Society; National Audubon Society; Northcoast Environmental Center; Pilchuck Audubon Society; Portland Audubon Society; Save The West; Sierra Club; Siskiyou Audubon Society; Siskiyou Regional Education Project; Tenmile Creek Association; Trout Unlimited, CA; Western Ancient Forest Campaign, Plaintiffs-Appellants, v. Michael KANTOR, * Secretary of Commerce; Rolland A. Schmitten, Assistant Administrator for National Marine Fisheries Service, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, CA, for plaintiffs-appellants.
Elizabeth M. Osenbaugh (briefed), M. Alice Thurston (argued), United States Department of Justice, Washington, DC, and James A. Coda, Assistant United States Attorney, San Francisco, CA, for defendants-appellees.
Appeal from the United States District Court for the Northern District of California, Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV 95-01844-SI.
Before CANBY and FERNANDEZ, Circuit Judges, and KING, District Judge. **
INTRODUCTION
The Oregon Natural Resources Council and various other environmental and fishing organizations (collectively "ONRC"), appeal the district court's grant of partial summary judgment against them in their citizen suit under the Endangered Species Act of 1973 (ESA), as amended, 16 U.S.C. §§ 1531-44. They sought an injunction to compel the Secretary of Commerce to make more speedy determinations regarding the addition of coho salmon to the endangered species list. We affirm.
On October 20, 1993, ONRC filed a petition with the Secretary of Commerce to list coho salmon as an endangered or threatened species throughout its range in Washington, Oregon and California. On January 26, 1994, the Secretary published his determination that the listing of coho salmon may be warranted.
On June 1, 1995, ONRC filed a complaint against the Secretary for injunctive and declaratory relief. The complaint alleged, inter alia, that the Secretary had failed to meet the statutory deadline under the ESA within which to make a determination whether coho salmon should be listed as endangered or threatened, and if so, to publish a proposed regulation listing the coho salmon. ONRC argued that, under the ESA, the Secretary had until October 20, 1994, which was one year from the date of filing the petition, to publish the proposed regulation. See 16 U.S.C. § 1533(b)(3)(B). ONRC sought an order compelling the Secretary to make the required determination and to publish a proposed regulation.
On July 25, 1995, the Secretary published a proposed regulation listing coho salmon as threatened in California and Oregon, but not in Washington. The Secretary then moved to dismiss ONRC's complaint on the ground that the publication of the proposed regulation mooted the complaint. The district court granted the Secretary's motion to dismiss, but the court also gave ONRC leave to file an amended complaint. ONRC did file an amended complaint, which alleged that although the Secretary had published the proposed regulation, he would soon fail to meet the statutory deadline under the ESA for publishing a final regulation listing coho salmon. ONRC argued that under the ESA the Secretary had until October 20, 1995, which was 24 months from the filing of the petition, to publish the final regulation. See 16 U.S.C. § 1533(b)(6)(A). ONRC sought an order compelling the Secretary to publish the final regulation by October 20, 1995.
On October 11, 1995, both ONRC and the Secretary filed motions for summary judgment. The district court held that the Secretary had violated the ESA by failing to publish the proposed regulation by October 20, 1994. However, it also held that the ESA did not require the Secretary to publish a final regulation until July 25, 1996, one year after publication of the proposed regulation. In addition, the district court stated that it was retaining jurisdiction over the matter in case the Secretary failed to meet the July 25, 1996 deadline. Since then the district court has extended the deadline for three months because of a congressionally imposed moratorium. See Environmental Defense Ctr. v.
Babbitt, 73 F.3d 867, 872 (9th Cir.1995) (). That does not affect the issue before us for review.
We review a grant of summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1432 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 515, 133 L.Ed.2d 424 (1995).
The denial of a preliminary injunction is reviewed for an abuse of discretion. Chalk v. United States District Court, 840 F.2d 701, 704 (9th Cir.1988).
In its order, the district court stated that the Secretary's "motion for summary judgment on the issue of the deadline for a final regulation on the coho salmon is GRANTED, and [ONRC's] motion for summary judgment on this issue is DENIED." The district court also retained jurisdiction over part of the case. Because the district court's order did not dispose of all the claims, it is not a final appealable order under section 1291. See Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1074 (9th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 274, 133 L.Ed.2d 195 (1995); Cheng v. Commissioner, 878 F.2d 306, 309 (9th Cir.1989).
Nevertheless, we have followed the Supreme Court's reasoning in Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981), that an order which itself does not grant or deny injunctive relief is nevertheless appealable under § 1292(a)(1) if it meets the following requirements: 1) the order has the practical effect of entering or refusing to enter an injunction; 2) the order has "serious, perhaps irreparable, consequences"; and 3) immediate appeal is the only way to challenge the order. See Orange County v. Hongkong & Shanghai Banking Corp. Ltd., 52 F.3d 821, 825 (9th Cir.1995); see also Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 905 (9th Cir.1995) (); Tagupa v. East-West Ctr., Inc., 642 F.2d 1127, 1129 (9th Cir.1981) (). All three Carson requirements are met here.
ONRC requested that the district court declare that under the ESA the Secretary had 24 months from the filing of the petition to publish the final regulation and that the Secretary must publish the final regulation prior to that deadline. The district court denied the requests and instead declared that under the ESA the Secretary had until July 25, 1996 to publish the final regulation.
The first Carson prong is met because the order had the effect of denying injunctive relief. See Self-Realization Fellowship Church, 59 F.3d at 905-06. ONRC's request for injunctive relief was based on its view that the ESA required the Secretary to publish a final regulation by October 1995. When the district court rejected that reading of the ESA, it essentially obviated the need for and denied injunctive relief. In other words, although the district court denominated its decision a grant and denial of summary judgment motions, the "substantial effect" of the order was to deny ONRC's request that the Secretary be ordered to publish the final regulation regarding coho salmon. See Tagupa, 642 F.2d at 1129.
The order also satisfies the second Carson prong. The Secretary has already published a proposed regulation listing coho salmon as threatened in California and Oregon. Because strong conservation measures may not be implemented until a final regulation is published, any delay in the publication of the final regulation would likely have serious consequences on the coho salmon population.
Finally, an immediate appeal may be the only effective way to challenge the order. A challenge to the district court's order would have to be completed within a relatively short time before the challenge would become moot. See 16 U.S.C. § 1533(b)(6)(A).
In other words, if an appeal were not allowed immediately, it is likely that the order would not be reviewed at all. Because all three Carson requirements are met, we have jurisdiction under § 1292(a)(1). See Self-Realization Fellowship Church, 59 F.3d at 905-06; Tagupa, 642 F.2d at 1129; cf. Orange County, 52 F.3d at 827 ().
The issue raised by ONRC's appeal is clear: if, as a result of a private petition, the Secretary has published a proposed regulation regarding the listing of a species as threatened or endangered, when is the Secretary required to act on the possible publication of a final regulation? We find that the unambiguous language of the ESA provides the answer: one year from the publication of the proposed regulation.
A citizen may petition to place a species on the endangered species list. See 5 U.S.C. § 553(e); 16 U.S.C. § 1533(b)(3)(A). Once that is done, the applicable language of the ESA determines the duties of the Secretary. 1 First, the ESA provides as follows:
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