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Pacific Coast Fed'n of Fishermen's Ass'n v. National Marine Fisheries Serv.

ELR Citation: 31 ELR 20631
Nos. Nos. 99-36027, 36195, 253 F.3d 1137/(9th Cir., 05/31/2001)

The court holds that the National Marine Fisheries Service (NMFS) acted arbitrarily and capriciously in concluding that proposed timber sales were not likely to jeopardize the continued existence of the Umpqua River cutthroat trout and the Oregon Coast coho salmon. The court first holds that the trial court had jurisdiction over the case. The U.S. Forest Service and the Bureau of Land Management were not indispensable parties that should have been joined in the action. In addition, NMFS' biological opinions, which contained the agency's no-jeopardy finding, are final agency actions. The issuance of a biological opinion marks the consummation of NMFS' consultation process, and it alters the legal regime and has direct and appreciable legal consequences.

The court next holds that the trial court properly held that NMFS acted arbitrarily and capriciously by ignoring site-specific project effects and limiting its aquatic conservation strategy (ACS) compliance analysis to the watershed scale. In determining ACS consistency for the timber projects at issue, NMFS analyzed the entire watershed, as opposed to each individual project, which effectively masked all project level degradation. The appropriate analysis of ACS compliance is undertaken at both the watershed and project levels. Additionally, the record contained no proof that the cumulative effect of site-specific degradation was considered in reaching a no-jeopardy opinion at the regional watershed level. Unless the effects of individual projects are aggregated to ensure that their cumulative effects are perceived and measured in future Endangered Species Act consultations, it is difficult to have any confidence in a regional no-jeopardy opinion. The court also holds that the trial court correctly held that the NMFS failed to adequately consider the short-term effects of the projects. There is no evidence in the record to support the conclusion that natural vegetation regrowth will adequately mitigate the degradation caused by the logging projects and ensure that fish that never hatched could return to the recovered spawning habitat. Lastly, however, the court vacates the trial court's decision prohibiting three sales for which NMFS had concluded would not likely affect the listed species. Nothing in the record calls into question NMFS' opinions with respect to these sales.

Counsel for Plaintiffs
Patti Goldman
Earthjustice Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

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

Goodwin, J. Before Hug and Brunetti, JJ.