Home » Case Summaries » 1996 » Oregon Natural Resources Council Inc. v. Kantor

 
 

Oregon Natural Resources Council Inc. v. Kantor

 

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On October 20, 1993, Oregon Natural Resources Council (ONRC) and several environmental groups filed a petition with the Secretary of Commerce to list coho salmon as endangered or threatened under the Endangered Species Act of 1973 (ESA)[1] throughout its range in Washington, Oregon, and California. The Secretary published his determination that listing “may be warranted” on January 26, 1994, approximately three months after the one-year statutory deadline to publish proposed regulations had expired.[2] On June 1, 1995, ONRC filed a complaint against the Secretary for injunctive and declaratory relief, claiming that the Secretary had missed the deadline of October 20, 1994, (one year from the date of filing the petition) to publish the proposed regulation.

In July of 1995, the Secretary proposed listing the coho salmon as threatened in Oregon and California, but not in Washington. The Secretary moved to dismiss ONRC’s complaint, alleging that the proposed regulations had mooted the claim. The district court granted the motion to dismiss, but allowed ONRC to amend their complaint. ONRC did so, alleging that the Secretary had until October 20, 1995 (twenty-four months from the filing of the original petition) to publish the final regulations. On October 11, 1995, both the Secretary and ONRC filed for summary judgment. The district court held that although the Secretary had violated the ESA by failing to publish proposed regulations within a year of the citizen petition, the final regulations did not have to be published until one year after the proposed regulations were actually published, not a year after the statutory date of publication. The district court also retained jurisdiction over the case in the event that the regulations were not published by the requisite date.

Because the district court did not dispose of all the claims in the case, it was not a final appealable order. However, the Ninth Circuit used the analysis in Carson v. American Brands[3] to determine whether the district court’s determination would be appealable. The Ninth Circuit decided that the decision was appealable because the decision had the practical effect of entering or refusing an injunction, the issue had the potential for “serious, perhaps irreparable, consequences,” and immediate appeal was the only way to challenge the order.[4]

The other issue in the case was to determine when the final regulations were to be published. The court found that the ESA explicitly states that final regulations are to be promulgated one year after the proposed regulations. Although the initial delay from the time of the citizen petition to the publication of the proposed regulations was unfortunate, the court concluded that the ESA mandates only that final regulations be published a year after the proposed listing. This time period is necessary in order for agency determinations to be based on the “best scientific and commercial data available.”[5]


[1]16 U.S.C. §§ 1531-1544 (1994).

[2] Oregon Natural Resources Council, 99 F.3d at 336.

[3]450 U.S. 79 (1981).

[4] Oregon Natural Resources Council, 99 F.3d at 337 (quoting Orange County v. Hong Kong & Shanghai Banking Corp., 52 F.3d 821, 825 (9th Cir. 1995)).

[5]16 U.S.C. § 1533(b)(1)(A) (1994).

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