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Oregon Natural Resources Council v. Daley

ELR Citation: 29 ELR 20514
Nos. CV 97-1155-ST, 6 F. Supp. 2d 1139/(D. OR., 06/01/1998)

The court holds that the National Marine Fisheries Service's (NMFS') decision not to list the Oregon Coast evolutionary significant unit (ESU) of coho salmon as threatened under the Endangered Species Act (ESA) was arbitrary and capricious and was based on an erroneous legal standard. The court first holds that because NMFS applied the wrong standard in its final rule not to list the ESU, its decision violated the ESA and must be set aside and remanded for reconsideration. NMFS concluded only that the ESU likely will not become endangered in the two years after issuance of the final rule while the state of Oregon attempts to provide adequate habitat protections. It reached no conclusion concerning endangerment in the foreseeable future. The ESA, however, requires a determination as to the likelihood—rather than merely the prospect—that a species will not become endangered in the foreseeable future. Accordingly, if the Oregon ESU is likely to become endangered in the foreseeable future unless Oregon implements significant changes in its environmental laws and policies, then by definition the ESU is presently a threatened species. In addition, NMFS has no authority under the ESA to simply defer a listing decision for as long as it sees fit while waiting for some possible future event.

The court then holds that NMFS acted arbitrarily and capriciously by relying on improper factors and offering an explanation for its decision that runs contrary to the administrative record. NMFS may not rely on plans for future actions to reduce threats and protect a species as a basis for deciding that listing is not currently warranted. Moreover, absent some method of enforcing compliance, protection of a species can never be assured. Thus, voluntary or future conservation efforts by a state should be given no weight in the listing decision. Although NMFS may consider the Northwest forest plan in its final rule, the plan alone offers an inadequate basis to prevent the listing of the ESU as threatened. Moreover, it was arbitrary and capricious for NMFS to rely on future, voluntary, and untested habitat measures premised on an admittedly inadequate state initiative to restore salmon and a memorandum of agreement between the state and NMFS that can be terminated with 30 days' notice. NMFS' decision was also based on inadequate harvest and hatchery measures. Even though many of the harvest reforms have been implemented, their future is uncertain. Further, the rule fails to explain why the existing hatchery measures originally supported a proposal to list the ESU as threatened but later turned into a basis for not listing the ESA as threatened. In addition, the escapement trend fails to justify a decision not to list the ESU.

[A decision related to this litigation is published at 29 ELR 20404.]

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