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Oregon Natural Resources Council v. Kantor

ELR Citation: 27 ELR 20469
Nos. 96-15046, 99 F.3d 334/(9th Cir., 10/31/1906)

The court holds that under §4(b)(6)(A) of the Endangered Species Act (ESA), the Secretary of Commerce has one year from the date of a proposed rule to list a species as endangered or threatened to publish a final rule, withdraw the proposed rule, or extend the one-year period. Environmental and fishing organizations sought an order compelling the Secretary of Commerce to publish a final regulation regarding listing the coho salmon as endangered under the ESA within 24 months of their petition to list the species. The district court held that although the Secretary violated the ESA by publishing the proposed regulation listing the coho salmon more than one year after the petition's filing date, the ESA did not require the Secretary to publish a final regulation until one year after publication of the proposed rule. The court first holds that although the district court's order did not dispose of all claims it was nonetheless appealable. The order had the effect of denying injunctive relief, any delay in the publication of the final regulation would likely have serious consequences on the coho salmon population, and if an appeal were not allowed immediately, it is likely that the order would not be reviewed at all. The court next holds that the district court was correct in determining that the Secretary of Commerce had until one year after the date of publication of the proposed rule to either publish a final rule listing the coho salmon, withdraw the proposed rule, or extend the one-year period. Although the deadlines for determining whether action on a petition is warranted and for publishing a proposed regulation are expressly tied to the filing of the petition, the deadline for publishing the final regulation expressly makes the deadline dependent on the publishing of the proposed regulation.

Counsel for Plaintiffs
Michael R. Sherwood
Sierra Club Legal Defense Fund
180 Montgomery St., Ste. 1400, San Francisco CA 94104
(415) 627-6700

Counsel for Defendants
M. Alice Thurston, Elizabeth M. Osenbaugh
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before CANBY and FERNANDEZ, Circuit Judges, and KING, District Judge.*