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Oregon Natural Resources Council v. Daley

ELR Citation: 29 ELR 20404
Nos. CV-97-1155-ST, 16 F. Supp. 2d 1256/(D. Or., 07/02/1998) Motion to stay

The court denies a state's motion to stay a decision that the National Marine Fisheries Service (NMFS) improperly decided that the evolutionary significant unit of coho salmon did not warrant listing as a threatened species under the Endangered Species Act (ESA). The court first holds that the state did not make a sufficient showing that it will likely prevail on the merits on appeal. Even if the court conceded that the state will likely prevail on the issue of whether voluntary measures should be considered in a listing decision, the state ignores the court's primary finding that NMFS used an improper time frame for evaluating the risk of species endangerment, rendering its final rule arbitrary and capricious. In addition, no case law supports the state's assertion. And neither NMFS nor the state submitted any legislative history supporting their argument. The court then holds that the state did not establish that it will suffer irreparable injury absent a stay. The state's assumption that because voluntary conservation efforts cannot be taken into account in ESA listing decisions, citizens will discontinue their conservation efforts is unwarranted. Moreover, the court rejects the state's arguments that its salmon restoration funding will be repealed and that state and local regulatory agencies will not bother to adopt long-term measures for salmon preservation and restoration. The state erroneously assumes that the sole purpose of the state's salmon restoration initiative is to prevent a federal ESA decision rather than to preserve salmon runs. The court also holds that the state did not establish that the coho salmon would be injured absent a stay. The court further holds that the benefits of a stay are outweighed by the balance of harms. The court's ruling in no way mandates that habitat restoration efforts cease. In addition, the court's opinion clearly outlines the type of adequate and enforceable measures that NMFS may consider in ESA listings.

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

Counsel for Defendant
Samuel D. Rauch III
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000