The following cases are pending. They are listed by topic area.
On January 5, 2006, the Alliance for the Wild Rockies and Friends
of the Wild Swan conservation organizations filed a lawsuit in
Oregon's U.S. District Court challenging the USFWS final critical
habitat designations for bull trout. The final rule significantly
narrowed the geographic scope of the proposed critical habitat
designation and removed hydropower reservoirs from the designation.
The plaintiffs charge that bull trout migratory life is essential to
the long-term survival of the species and that the USFWS used biased
economic analyses to reach their conclusion. Oral arguments were heard
on April 27, 2007 and the parties are awaiting a ruling.
On August 14, 2007, Judge Hogan ruled that the ESA does not
prohibit NOAA Fisheries from considering the extinction risk of both
wild fish and hatchery fish when making an ESU's status
determination. This does not conflict with his 2001 ruling, in which
he held that, if NOAA Fisheries defines an ESU to include certain
hatchery fish, then those hatchery fish must be part of the listed,
or protected, population. Moreover, Hogan's recent decision is
consistent with Judge Coughenour's 2007 holding that an ESU's status
determination must be based on the health and abundance of an ESU's
wild fish, and cannot be downgraded simply because of hatchery fish
abundance. Together, these three cases stand for the proposition
that an ESU's status must be based on the wild fish status, and that
wild and hatchery fish can be evaluated differently in determining
an ESU's status, but that all components of an ESU -- including any
hatchery fish defined as part of that ESU -- must be protected under
the listing.
On December 13, 2005, the Alsea Valley Alliance and a coalition
of property owners, farmers and business groups filed a lawsuit
challenging the listing of 16 stocks of salmon from Oregon,
Washington, Idaho and California under NOAA Fisheries' new hatchery
policy, which continues to treat hatchery and naturally-produced
stocks differently. The plaintiffs had filed an intent to sue back in October,
2004, but action on the lawsuit was delayed as the courts awaited
NOAA Fisheries' new hatchery policy. Oral arguments were heard on
April 17, 2007 and the parties are awaiting a ruling.
On January 5, 2007, the United States Supreme Court agreed to hear a pair of
consolidated appeals - EPA v. Defenders of Wildlife and National
Association of Homebuilders v. Defenders of Wildlife. The court will
consider (1) whether the ESA expands the powers of a federal agency
beyond its organic statute to require a federal agency to take actions
to protect a listed species that it otherwise would not be authorized to
take; and (2) what level of consultation is required under ESA Section 7
for delegation of federal programs to the States under the Clean Water
Act. NWHA signed onto an
amicus brief
prepared by Van Ness Feldman that supported the petitioners.
On June 25, 2007, the Supreme Court issued its decision. The
Supreme Court reversed the Ninth Circuit, reaffirming that Section
7(a)(2) of the ESA covers only discretionary agency actions, and
does not attach to actions an agency is required by statute to
undertake. The Court cited with favor the D.C. Circuit 1992 Platte
River decision, holding that the ESA could not be a basis for
reopening an annual hydropower license otherwise mandated by the FPA.
The Court emphasized that just because a statute is enacted later in
time, it is not automatically read to modify earlier statutes.
See the ruling here.
Closely Divided U.S. Supreme Court Rejects Effort to Expand the
Scope of the Endangered Species Act - Joe Nelson and Matt Love.
Van Ness Feldman
The Supreme Court Decides that the Endangered Species Act does
Not Trump the Clean Water Act - Beth S. Ginsberg, Michael P.
O'Connell, and Barbara D. Craig. Stoel Rives
Supreme Court
Limits Reach of Endangered Species Act - Richard M. Glick and
Lindsay Eyler. David Wright Tremaine
In May, 2005, U.S. District Court Judge Redden declared NOAA
Fisheries' 2004 FCRPS BiOp to be invalid. In October, 2005, he
ordered the 2004 BiOp's provisions to remain in place during the
course of a remand involving collaboration with states and
tribes. In December, 2005, U.S. Justice Department attorneys
challenged these decisions in the Ninth Circuit Court of
Appeals. At issue was whether the defendants' BiOp improperly
looks at operations in isolation of baseline conditions and
cumulative effects on salmon. The federal government defends the
BiOp and its analytical strategy and argued that Redden exceeded
his authority by ordering collaboration with states and tribes
in the remand process. Oral arguments were June 1, 2006.
On April 9, 2007, the Ninth Circuit affirmed Judge Redden’s
remand decision, finding that Redden correctly held that the
2004 BiOp analysis was structurally flawed. The Ninth Circuit
upheld Redden’s decision that the BiOp failed to incorporate
degraded baseline conditions into it jeopardy analysis and was
legally deficient because its jeopardy analysis did not
adequately consider the proposed action’s impacts on the listed
species’ changes of recovery. For more analysis, click below:
Ninth Circuit Affirms Judge Redden’s Remand of NMFS’s 2004 Biological Opinion for Federal Columbia River Power System - Richard M. Glick. Davis Wright Tremaine
Ninth Circuit Upholds Judge Redden; Rejects NOAA Fisheries'
Biological Opinion in Federal Columbia River Power System
Litigation - Beth S. Ginsberg, Barbara D. Craig, and Cherise M.
Oram. Stoel Rives
On October 10, 2006, Salmon Spawning and Recovery Alliance
filed a complain in Seattle's U.S. District Court stating that
NMFS's salmon-harvest management plan approved in 2004
jeopardizes the recovery of chinook, which are listed as
threatened under the ESA. The plaintiffs want salmon
harvest levels decreased because o increased pressure by
Canadian fisheries on listed Puget Sound stocks. This case
is in the briefing stage.
Environmental groups, led by Trout Unlimited and Earthjustice, sued NOAA Fisheries on June 21, 2005, over the hatchery
listing policy developed in the wake of the Alsea case. The
complaint noted that hatchery populations can "harm wild salmon by
diminishing genetic diversity, reducing the fitness of salmon
populations to survive in their native streams, competing for
territory and mates, and by spreading disease." Industry groups have
also filed a motion to intervene, claiming that the policy is faulty
in the manner in which it screens hatchery fish out of listing
determinations. On June 13, 2007, the court ruled that NOAA
Fisheries erred by considering the numbers of hatchery-bred salmon
and steelhead in a listing decision. The Court deferred ESA
challenges to the hatchery listing policy to its order on the
Steelhead case (see below). The Court ruled on the remaining
NEPA issues, concluding that NEPA compliance was not required in
issuing the hatchery listing policy and dismissing the case.
View the ruling here.
NOAA
Fisheries' Hatchery Policy and Steelhead "Downlisting" Found
Inconsistent with ESA and Best Science - Cherise M.
Oram, Barbara D. Craig, and Beth Ginsberg. Stoel Rives
On January 17,
2006, NOAA Fisheries declined to list the Oregon coast coho salmon
under the ESA. Trout Unlimited challenged the decision in the
Western District Court of Washington. On October 10, 2006, the
Western District Court of Washington agreed to transfer this case to
the Eugene Division of the District of Oregon. The case was
assigned to Magistrate Judge Janice M. Stewart. On July 13, 2007,
Magistrate Judge Stewart issued “Findings and Recommendations” in
the case. Magistrate Judge Stewart found that the National Marine
Fisheries Service (“NMFS”) “had no legitimate reason to abandon its
proposed listing” of the Oregon coast coho. NMFS’s decision relied
too heavily on viability assessments by the State of Oregon, which
did not represent the best available science and were plagued by
substantial uncertainty. Consequently, Judge Stewart concluded
that that the decision to withdraw the coho listing proposal was
arbitrary, capricious, contrary to the best available evidence, and
a violation of the ESA, and recommended ordering NMFS to issue an
new final listing rule within 60 days. The defendants
had until
August 20, 2007
to file objections to the Findings and Recommendations of Magistrate
Judge Stewart. The parties to the case responded to the findings of
Judge Steward on September 14, 2007 in Oregon's U.S. District Court.
The arguments, as well as Stewart's findings and recommendations,
were pondered by Judge Garr M. King. King had the option of
accepting Stewart's findings, modifying or rejecting them. He
accepted them and ordered the status of the Oregon coast coho salmon
to be assessed for listing once again by February 4, 2008.
On April 6, 2006, Trout Unlimited filed a lawsuit in the
Western District Court of Washington related to NOAA Fisheries'
decision to downgrade the upper Columbia River steelhead
population. The complaint is that NOAA Fisheries was wrong
when it used the hatchery listing policy to downgrade the upper
Columbia River steelhead population from "endangered" to
"threatened." On June 13, 2007, the court ruled that NOAA
Fisheries erred by considering the numbers of hatchery-bred salmon
and steelhead in the listing decision. Therefore, the court
found that NOAA Fisheries was also wrong to downlist the Upper
Columbia River steelhead "Evolutionary Significant Unit," or ESU,
from endangered to threatened.
View the ruling here.
The ruling is being appealed to the Ninth Circuit Court of
Appeals by the Building
Industry Association of Washington, Coalition for Idaho Water, Idaho
Water Users Association and the Washington State Farm Bureau.
