Ramsey v. Kantor, 95-35471

Decision Date19 September 1996
Docket NumberNo. 95-35471,95-35471
Parties, 27 Envtl. L. Rep. 20,158, 96 Cal. Daily Op. Serv. 7008, 96 Daily Journal D.A.R. 11,513 James A. RAMSEY; Elf Atochem North America; Aluminum Company of America; Columbia Aluminum Corporation; Columbia Falls Aluminum Company; Kaiser Aluminum & Chemical Corporation; Intalco Aluminum Corporation; Northwest Aluminum Company; Reynolds Metals Company; Vanalco, Inc., Plaintiffs-Appellants, v. Mickey KANTOR, * in his official capacity as Secretary of Commerce; United States Department of Commerce; National Marine Fisheries Service; Pacific Fishery Management Council; Phillip Anderson, in his official capacity as Chairman of the Pacific Fisheries Management Council; North Pacific Fisheries Management Council; Richard B. Lauber, in his official capacity as Chairman of North Pacific Fisheries Management Council; Bruce Babbitt, in his official capacity as the Secretary of the Interior; U.S. Fish & Wildlife; State of Oregon; Rod Ingram, in his official capacity as Acting Director of the Oregon Department of Fish and Wildlife; State of Alaska; Carl L. Rosier, in his official capacity as Commissioner of the Alaska Department of Fish & Game; State of Washington; Robert Turner, in his official capacity as Director of the Washington Department of Fisheries, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Jacob Tanzer, Ball, Janik, & Novack, Portland, Oregon, for plaintiffs-appellants.

J. Carol Williams, United States Department of Justice, Washington, DC, for federal defendants-appellees.

Stephanie L. Striffler, Assistant Attorney General, Salem, Oregon, for defendant-appellee State of Oregon.

T. Henry Wilson, III, Assistant Attorney General, Anchorage, Alaska, for defendant-appellee State of Alaska.

Robert K. Costello, Assistant Attorney General, Olympia, Washington, for defendant-appellee State of Washington.

Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-94-00761-MFM.


REINHARDT, Circuit Judge:

This case raises several questions of statutory interpretation involving the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), and the way in which the two statutory schemes interact.

First, we must decide whether the issuance of an incidental take statement under § 7 of the ESA may in appropriate circumstances permit parties that are neither federal agencies nor applicants to engage in incidental takes consistent with the statement without applying for section 10 permits. We answer this question in the affirmative and conclude that Oregon and Washington were not required to obtain section 10 permits in order to issue regulations governing the harvest of in-river salmon.

Next, we must decide whether the promulgation of an incidental take statement by a federal agency constitutes major federal action for purposes of NEPA. We hold that in this case it does, because the issuance of the statement is a prerequisite to the states' adoption of the fishing regulations at issue. Thus we conclude that the National Marine Fisheries Service was required, in accordance with the provisions of NEPA, to prepare an Environmental Assessment (EA), and possibly an Environmental Impact Statement (EIS).

We also hold that the Secretary of Commerce's failure to disapprove the plans governing fishing off the coast of Alaska, thus enabling them to go into effect, constitutes major federal action. Accordingly, we again conclude that in accordance with the provisions of NEPA an EA, and possibly an EIS, were required. Finally, we determine that the plaintiffs' challenge to the actions taken by the Pacific Fishery Council is moot.

I. Background

At the heart of this case are the Snake River sockeye salmon, the Snake River fall chinook salmon, and the Snake River spring/summer chinook salmon. In December of 1991 and May of 1992, the National Marine Fisheries Service listed the various species as threatened under the Endangered Species Act. 1

The listed salmon are born in tributaries of the Snake River and then travel down the When the salmon enter the rivers where they spawn, they come under the jurisdiction of a different set of agencies. In the Columbia River, the management and harvest of salmon is supervised by the Columbia River Fish Management Plan, a unique, judicially created, federal-state-tribal compact that controls, through a consent decree, the rules and regulations governing fishing allocations and rights of harvest for fish that enter the Columbia River system. 2 Federal members include the National Marine Fisheries Service, the Bureau of Indian Affairs, and the United States Fish and Wildlife Service. State members include the states of Oregon and Washington. 3 A number of Indian tribes are also members.

Snake to the Columbia and out to the Pacific Ocean, before returning, two to five years later, to their natal streams to spawn. During their journey, the salmon travel along thousands of miles of waterways, around eight mainstem hydroelectric dams and past thousands of acres of public and private land. Along their way, the salmon also come under a bewildering array of agencies and legal regimes. While they are in the ocean, the salmon are covered by the Magnuson Act, which authorizes the creation of fishery management councils under the Secretary of Commerce and requires the councils to develop fish management plans. Two such councils are relevant here: the North Pacific Fishery Management Council (whose members include the states of Alaska, Washington, and Oregon, as well as the National Marine Fishery Service) and the Pacific Fishery Council (whose members include California, Oregon, Washington, Idaho, and the National Marine Fishery Service). The North Pacific Fishery Management Council oversees ocean fishing for salmon in their northern range--the fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska; the Pacific Fishery Council governs ocean fishing for salmon in their southern range--seaward of California, Oregon, and Washington. The Secretary of Commerce is charged with ensuring that the fishery management councils abide by the restrictions in the Magnuson Act, designed to protect the nation's food supply and the fishing industry from the dangers of overfishing.

The Columbia River Fish Management Plan does not regulate fishing directly. Rather, the plan apportions the fishing rights to the state and tribal members. The states then enact regulations governing fishing in the Columbia River, although they must do so in compliance with the terms of the Columbia River Fish Management Plan.

The state regulations must not only meet the requirements of the Columbia River Fish Management Plan, they must also comply with applicable environmental laws, especially the ESA, 4 which is administered by the United States Department of Commerce in part through the National Marine Fisheries Service.

Aside from the complexity of the interlocking legal regimes, this case is also complicated by the fact that the endangered chinook salmon intermingle with and are all but indistinguishable from hatchery chinook salmon, which are not protected by the ESA. With current mixed-stock fishing methods it is nearly impossible to catch hatchery chinook salmon in the Columbia River without also catching and killing wild chinook salmon. Section 9 of the ESA, however, makes it illegal to "take" or kill any members of an endangered species. As a result, chinook salmon river fishing, as currently practiced, would violate the ESA unless state regulations authorizing but limiting such fishing qualify for one of the ESA's two exceptions Under both the statutory exceptions to § 9, the incidental taking of an endangered species is permitted if it is determined that such action does not jeopardize the survival of the species. One exception is embodied in § 7 of the ESA, the other in § 10. 5 The § 7 exception provides a procedure whereby federal agencies and certain statutorily-defined "applicants" may obtain determinations in the form of incidental take statements through a comparatively informal consultation process. By contrast, § 10 prescribes a more rigorous and time-consuming procedure whereby private parties may apply for and obtain permits 6 authorizing incidental taking. 7

to § 9's prohibition on the taking of a protected species. A virtually identical problem exists with respect to sockeye salmon.

The current controversy began on May 28, 1993 when, acting pursuant to § 7 of the ESA, the National Marine Fisheries Service issued a biological opinion and incidental take statement governing the permissible incidental take in the areas involved in this action. 8 The opinion, which is a mandatory part of the § 7 process, identified one of its objectives as follows:

The more substantive objective of this biological opinion is to review the full range of salmon fisheries that may affect Snake River fall chinook. The review will include salmon fisheries that occur ... in the Columbia and Snake river basins.

Endangered Species Act-Section 7 Consultation, Biological Opinion at 2. The statement, which serves as the authorizing document, analyzed a number of fisheries including those governed by the Columbia River Fish Management Plan. It allowed takings to occur in those fisheries notwithstanding the prohibitions of § 9.

After the statement was issued, the states of Washington and Oregon promulgated regulations governing fishing in the Columbia River. The first question before us is whether the issuance of the § 7 statement enabled Oregon and Washington to promulgate those regulations without first obtaining a § 10 permit. Appellees say the answer is yes. Appellants contend that it is no.

Also at issue in this lawsuit is the proper...

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