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Ramsey v. Kantor

ELR Citation: 27 ELR 20158
Nos. 95-35471, 96 F.3d 434/(9th Cir., 09/19/1996)

The court holds that regulations Oregon and Washington issued governing salmon fishing in the Columbia River did not violate the Endangered Species Act (ESA), because they complied with and were contemplated by the National Marine Fisheries Service's (NMFS') ESA §7 incidental take statement for three threatened salmon species. The court first holds that Oregon and Washington were not required to obtain incidental take permits under ESA §10 in order to issue their salmon harvest regulations. ESA §7 indicates that any taking—whether by a federal agency, private applicant, or other party—that complies with the conditions set forth in an incidental take statement is permitted. Moreover, the implementing regulations expressly provide that a taking that is in compliance with a §7 incidental take statement need not be authorized by a §10 permit. In this case, the NMFS' incidental take statement clearly anticipated that Oregon and Washington would promulgate fishing regulations in accordance with its terms. The court next holds that the issuance of the incidental take statement constitutes major federal action for purposes of the National Environmental Policy Act (NEPA). The incidental take statement is functionally equivalent to a permit because the activity in question would, for all practical purposes, be prohibited but for the incidental take statement. Thus, the court holds that the NMFS was required to conduct an environmental assessment (EA) and possibly an environmental impact statement (EIS) in accordance with NEPA. The court also holds that the Secretary of Commerce's failure to disapprove plans governing fishing off the coast of Alaska, thus enabling them to go into effect, constituted major federal action that required an EA and possibly an EIS. Last, the court holds that plaintiffs' challenge to the Pacific Fishery Council's ocean harvest management plan is moot.

Counsel for Plaintiffs
Jacob Tanzer
Ball, Janik & Novack
One Main Place
101 SW Main St., Ste. 1100, Portland OR 97204
(503) 228-2525

Counsel for Defendants
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before REINHARDT, KOZINSKI, and FERNANDEZ, Circuit Judges.