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Ramsey v. Kantor

 

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This suit, brought primarily by aluminum companies against several defendants including the Secretary of Commerce and the states of Alaska, Washington, and Oregon, challenges state-permitted salmon harvests off the Northwest coast of the United States and within the Columbia River. The Ninth Circuit’s decision explores the nexus between the National Environmental Policy Act of 1969 (NEPA)[1] and the Endangered Species Act of 1973 (ESA)[2], a matter which is of particular concern in the Northwest due to the substantial number of major federal dams which adversely affect threatened and endangered species of Pacific salmon.

On May 28, 1993, the National Marine Fisheries Service (NMFS) issued a biological opinion and incidental take statement governing the permissible incidental take of salmon under the ESA in the areas involved in this dispute. The aluminum companies, who depend on inexpensive hydroelectric power for their manufacturing processes, wanted to ensure a reduction in the number of fish kills by commercial salmon harvesters so that more fish could be taken in connection with the diversion of water to hydroelectric plants.

The aluminum companies raised several issues under NEPA and the ESA related to the incidental take permits issued by states under section 7 of the ESA.[3] Specifically, the aluminum companies argued that issuance of an incidental take permit is a major federal action triggering NEPA analysis and that section 7 permits are available only to the five agencies cited on the cover of the NMFS biological opinion. They then argued that the defendants should be subject to the more rigorous section 10[4] procedure reserved for private parties.

The district court ruled that NEPA does not apply to incidental take statements under the ESA or to fish management plans, and that states do not have to obtain ESA section 10 private party permits before promulgating salmon fishing regulations. On appeal by the aluminum companies the Ninth Circuit conducted a detailed analysis of NEPA, the ESA, and the Columbia River Fish Management Plan[5] to determine the role of states and federal agencies in the permitting process.

The court first addressed the appellant’s allegation that in addition to a section 7 biological assessment required under the ESA for actions potentially affecting endangered species, the states were required to apply for section 10 permits as well. In the court’s view, this argument had little merit. The biological opinion and the subsequent incidental take statement prepared by NMFS thoroughly delineated the scope of activities being evaluated, including fishing in the Columbia River region. The statement authorized implementation of the Columbia River Fish Management Plan’s ocean/in-river agreement within harvest limits. Because Washington’s and Oregon’s actions were contemplated by these statements, the court concluded that the section 7 studies were sufficient under the ESA.

The court turned next to the appellants’ NEPA claim to determine whether the actions at issue in this controversy constituted “major Federal actions” within the meaning of the Act.[6] The district court concluded that in-river harvests do not constitute major federal actions because they do not entail sufficient federal involvement. The Ninth Circuit rejected this conclusion. According to the Ninth Circuit, the grant of a federal permit, a prerequisite for projects adversely affecting the environment, is a major federal action under NEPA. The appellees acknowledged this fact, but argued that biological opinions and incidental take statements are not permits. The court dismissed the appellees argument, however, concluding that biological opinions and statements are to be considered functionally equivalent to permits because, without them, the activity in question would be prohibited.

Federal regulations require an agency undertaking a major federal action to prepare an Environmental Assessment (EA) in order to determine whether the environmental impact are so significant that they warrant a more detailed study.[7] Appellees argued that preparation of an EA was not necessary in light of the biological assessment (BA) they had already conducted. The court was not convinced, however, and held that BAs are not adequate substitutes for EAs. The court cited a previous opinion which explained that, “[w]hile a BA analyzes the impact of a proposed action upon endangered species, an EA analyzes the impact of the proposed action on all facets of the environment. Thus, if only a BA is prepared, there may be gaps in the agency’s environmental analysis.”[8] The Ninth Circuit concluded that, at a minimum, incidental take statements promulgated under the ESA require both a BA and an EA.


[1]42 U.S.C. §§ 4321-4370c (1994).

[2]16 U.S.C. §§ 1531-1544 (1994).

[3] Id. § 1536.

[4] Id. § 1539.

[5]The Columbia River Fish Management Plan is a “unique, judicially created, federal-state-tribal compact that controls, through consent decree, the rules and regulations governing fishing allocation and rights of harvest for fish that enter the Columbia River System.” Ramsey, 96 F.3d at 438; see also United States v. Oregon, 913 F.2d 576 (9th Cir. 1990), cert. denied, 501 U.S. 1250 (1991).

[6]42 U.S.C. § 4332(C) (1994).

[7]40 C.F.R. §§ 1501.4, 1508.9 (1996).

[8]Save the Yaak Comm. v. Block, 840 F.2d 714, 718 (9th Cir. 1988).

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