Home » Case Summaries » 2004 » Alsea Valley Alliance v. Department of Commerce


Alsea Valley Alliance v. Department of Commerce


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Alsea Valley Alliance (Alsea) challenged a National Marine Fisheries Service (NMFS) final rule listing an evolutionarily significant unit of coho salmon as threatened under the Endangered Species Act (ESA).[1] The United States District Court for the District of Oregon allowed the Oregon Natural Resources Council and other groups (collectively ONRC) to intervene in a suit brought by Alsea against NMFS. Concerned that NMFS would not appeal the district court’s decision, ONRC intervened after the district court invalidated the final rule and remanded the rule to NMFS for reconsideration. In its appeal to the Ninth Circuit, ONRC contested the district court’s invalidation of the final rule; at the same time, Alsea appealed the order allowing ONRC to intervene in its suit. The Ninth Circuit dismissed both appeals for lack of jurisdiction.

The suit originated when NMFS enacted a final rule designating naturally spawned coho salmon in the Oregon coast evolutionarily significant unit as threatened. The rule failed to include or consider hatchery spawned salmon. Alsea challenged this rule under the Administrative Procedure Act,[2] and the district court found that NMFS’s distinction between naturally spawned and hatchery spawned coho salmon was arbitrary and capricious.[3] The district court granted summary judgment to Alsea and remanded the rule to NMFS to consider the best scientific data available in its listing decision. NMFS complied with the district court order without contesting the remand order.[4] ONRC, desiring to appeal the district court’s order in light of NMFS’s choice not to do so, motioned to intervene as of right according to Federal Rule of Civil Procedure 24(a)(2). This rule allows a party to intervene when it has an interest in the action, resolution of the action may damage the party’s ability to protect its interest, and the existing parties do not represent the intervening party’s interest.[5] The district court allowed ONRC to intervene for appeal purposes only, because NMFS failed to represent ONRC’s interests. The Ninth Circuit stayed the district court’s remand of the final rule pending appeal and addressed both ONRC’s appeal of the remand order and Alsea’s appeal of the intervention order in this action.

The court first addressed the remand order. It stated appellate courts have jurisdiction over final decisions, and that a remand order is usually not a final decision.[6] The three requirements a remand order must meet to be considered final are: “(1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.”[7] The court did not address the first two requirements because it found that the third was absent. The court noted that in previous cases where it found that review would be foreclosed without an immediate appeal, the agency, rather than the plaintiffs, appealed the remand order. Because an agency cannot appeal its own decision after the remand order, the order is effectively final for the agency. In this case, the court stated, ONRC has the ability to challenge any decision NMFS makes. First, NMFS may grant ONRC relief in its decision on remand. In addition, actions taken by NMFS are subject to judicial review after they are completed. Thus if ONRC is not satisfied by NMFS’s final decision, it can bring suit to challenge NMFS after the agency makes a decision.

ONRC attempted to argue that the district court’s decision to set aside NMFS’s listing of the coho salmon was a separately appealable decision from declaring the delisting arbitrary and capricious thus making the issue appealable immediately as a final decision. In support of its argument, ONRC cited cases in which the appellate court allowed a regulation to stand while issuing a remand order. The Ninth Circuit distinguished this situation because the previous appellate courts issued the remand order, whereas in this case the district court issued the order. Therefore, the court lacked jurisdiction over the entire remand order.

ONRC alternatively argued that the remand order is subject to an interlocutory appeal under 28 U.S.C. section 1292(a)(1) because the order had the effect of an injunction. The court explained that an order is appealable if it has the practical effect of an injunction, has major and possibly irreversible consequences, and an immediate appeal is the only way to challenge it. [8] The court held that the district court’s summary judgment decision did not meet the first requirement because the decision did not force NMFS to remove the coho salmon from the ESA list. The decision simply precluded enforcement of the decision as it stood when the district court reviewed it, and did not have the effect of an injunction.

The Ninth Circuit summarily disposed of Alsea’s appeal of the intervention order. Reasoning that an order allowing intervention is interlocutory and not a final order, the court thus stated the order could only be reviewable upon appeal of a final judgment. Because there was no final judgment in this case, the court dismissed the appeal of the intervention order. In conclusion, the court dismissed both appeals for lack of jurisdiction and dissolved the stay of remand to NMFS.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[3] Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1163 (D. Or. 2001), appeal dismissed, 358 F.3d 1181 (9th Cir. 2004).

[4] The agency enacted an action plan to review its salmon hatchery policy and salmon listing procedures.

[5] Fed. R. Civ. P. 24(a)(2).

[6] 28 U.S.C. § 1292 (2000).

[7] Collord v. United States Dep’t of the Interior, 154 F.3d 933, 935 (9th Cir. 1998).

[8] Calderon v. United States Dist. Court for the Cent. Dist. of Cal., 137 F.3d 1420, 1422 n.2 (9th Cir. 1998) (citing Carson v. Am. Brands Inc., 450 U.S. 79, 83 (1981)).

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