Category Archives: Fish and Wildlife

Wilderness Society v. United States Fish and Wildlife Service

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Wilderness Society and the Alaska Center for the Environment (collectively Wilderness Society) challenged an action of the United States Fish and Wildlife Service (FWS) permitting an enhancement project for sockeye salmon (Oncorhyncus nerka) to continue within a national refuge and wilderness area under the Wilderness Act[1] and the National Wildlife Refuge System Administration Act (Refuge Act).[2] The district court granted summary judgment for FWS on all counts. Wilderness Society appealed and the Ninth Circuit affirmed.

Since 1974, Tustumena Lake in Alaska has been part of a sockeye salmon research project in which salmon eggs were gathered, incubated at a hatchery, and released as fry into lake tributaries. Upon the passage of the Alaska National Interest Lands Conservation Act (ANILCA)[3] in 1980, Tustumena Lake became part of the Kenai National Wildlife Refuge (Refuge) and the Kenai Wilderness. Pursuant to ANILCA, FWS issued a Final Comprehensive Conservation Plan (Plan), environmental impact statement, and Wilderness Review in 1985. The Plan outlined the problem of off-refuge harvest of salmon and included a management effort to continue the stocking of salmon fry in the lake in addition to allowing natural spawning to dominate salmon production in most of the refuge. In 1992-1993, the research project was elevated to a “commercial enhancement project” under contract with the Cook Inlet Aquaculture Association (CIAA), a private nonprofit group dedicated to protection and rehabilitation of salmon and salmon habitat. CIAA and FWS conducted an environmental assessment (EA), and FWS created a Fishery Management Plan for the Refuge, discussing the project and indicating that whether the project should be allowed to continue was to be determined under the guidelines of the National Environmental Policy Act (NEPA).[4] After releasing a finding of no significant impact, FWS issued a special use permit to CIAA in 1997. Wilderness Society sued for injunctive and declaratory relief, arguing that allowing the project violated the Wilderness Act, ANILCA, the Refuge Act, NEPA, and the Administrative Procedure Act.[5] On appeal, Wilderness Society limited its challenge of the project to violations of the Wilderness Act and the Refuge Act.

Prior to considering the substantive claims, the Ninth Circuit considered the preliminary question of the deference due to FWS’s decision to authorize the project. The Ninth Circuit applied the standard set out in United States v. Mead.[6] In Mead, the court set forth the test to determine whether to give an agency the high level of deference required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[7] commonly known as Chevron deference.[8] Applying that test to FWS, the Ninth Circuit found that it owed Chevron deference to FWS’s action approving the project, based on four considerations. First, Congress clearly gave FWS authority to manage and issue regulations for the Kenai Wilderness.[9] Next, the public had opportunity to comment on the EA, and this notice and comment procedure indicates Chevron deference is due.[10] The permit was also consistent with the overall Final Plan, which FWS had specific authority to promulgate and would be given Chevron deference. Finally, FWS followed the formal procedures of NEPA, indicating careful analysis and decision making. Despite the court’s determination to use Chevron deference, it indicated it would arrive at the same conclusions using the less deferential Skidmore v. Swift & Co.[11] standard. After determining the deference issue, the Ninth Circuit then considered the substantive arguments by applying the Chevron test, evaluating 1) whether the statute was ambiguous, and 2) if so, whether the agency’s interpretation of the statute was reasonable.

Wilderness Society claimed that the project violated the Wilderness Act because it failed to preserve the natural condition of the wilderness. The Ninth Circuit examined the language of the Wilderness Act concerning preservation of the natural environment and found both the undefined level of human activity allowed in a wilderness refuge and the inclusion of the mandate to “manage,” in addition to “protect,” the natural condition constituted ambiguities in the statute about how natural a given area must remain.[12] Based on this unclear language, the Ninth Circuit evaluated the reasonableness of FWS’s interpretation that the project was permissible. Persuaded by the Plan’s inclusion of the project, and reasoning that, due to commercial fishing outside the wilderness, the natural ecosystem grew dependent on the supplemented fish population, the Ninth Circuit determined that allowing the project to continue was reasonable and affirmed the holding of the district court.

Wilderness Society also argued that the project constituted a “commercial enterprise” expressly prohibited under the Wilderness Act.[13] Applying the Chevron analysis, the Ninth Circuit again found ambiguity in the statute. The court identified two ambiguities in the applicable provision of the Wilderness Act. First, the statute left open the question of whether the location of the commercial part of an activity was relevant to categorizing the entire activity as a commercial enterprise. Second, the statute was unclear as to whether the term “commercial enterprise” itself referred to the appearance or the function of an activity. Given this lack of clarity, the Ninth Circuit decided that FWS’s interpretation was reasonable and affirmed the district court in dismissing the claim.

Finally, Wilderness Society challenged the project as a violation of the Refuge Act, arguing that FWS’s action was not compatible with the purpose of the Refuge.[14] The plaintiffs contended that artificial stocking of the salmon population conflicted with the purpose of conserving the fish and wildlife habitat in its natural condition.[15] Again applying the Chevron test, the Ninth Circuit found the Refuge Act unclear because the term “natural diversity” was ambiguous and other stated purposes for the Refuge included the protection and restoration of threatened species.[16] In light of that ambiguity, the court evaluated the reasonableness of FWS’s action as a use compatible with the Refuge’s purposes.

The Ninth Circuit determined that the purposes of ANILCA related to the evaluation of reasonableness because the Refuge Act specifically provided that conflicts must be resolved in favor of ANILCA.[17] The Ninth Circuit referred to three separate provisions of ANILCA which allow enhancement of fish populations.[18] Based on these provisions, the court determined that Congress intended to give FWS the authority to consider stock enhancement as a possible compatible use within the Refuge and affirmed the decision of the district court.

On all counts, the Ninth Circuit found that FWS acted within its authority to grant the project a permit based on the ambiguity of the statutes involved and the delegation of authority from Congress. Therefore, the Ninth Circuit affirmed the decision of the district court to grant summary judgment for FWS.

In dissent, Judge Fletcher took issue with the majority’s basic evaluation of the ambiguity of the Wilderness Act and Refuge Act. Looking at the stated objectives of both statutes and ANILCA as applied to the Kenai Refuge, Fletcher concluded that congressional intent was clear and thus no deference was due to FWS’s interpretation deviating from that intent.

Concerning the Wilderness Act, Judge Fletcher disagreed that the language was ambiguous. Relying on the tools of construction that require statutory language to be considered as a whole,[19] she denounced the majority’s finding that words such as “natural condition,” “permanent,” and “commercial” were ambiguous. Judge Fletcher maintained that within the context of the statutes the terms are easily understood. Based on the plain meaning of the statutes, Judge Fletcher found that they could not include activities such as the “annual, ongoing alteration of the natural ecological balance” caused by the artificial removal and incubation of salmon eggs for the purpose of a commercial fishery.[20]

Judge Fletcher also disagreed with the majority that ANILCA provisions allowing enhancement type activities had any bearing on FWS’s approval of the project. Fletcher pointed out that Congress listed exceptions to the general purpose to preserve natural conditions.[21] Because activities like the project were not part of that list, and because exceptions not among others enumerated are usually assumed to be purposefully excluded by Congress,[22] Judge Fletcher found that ANILCA does not support the project. Furthermore, she found that the general mandates of ANILCA do not overrule specific preservation purposes in the Wilderness Act.

Finally, Judge Fletcher argued that the majority misapplied the ambiguity analysis because it looked at the phrases or words in isolation, rather than as applied to the action by FWS. Finding nothing in the record showing that the stocking of salmon related to the natural salmon population, Judge Fletcher dissented.

[1] 16 U.S.C. §§ 1131-1136 (2000).

[2] National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. §§ 668dd-668ee (2000).

[3] Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3101-3233 (2000).

[4] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

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

[6] 533 U.S. 218 (2001).

[7] 467 U.S. 837 (1984).

[8] Mead, 533 U.S. at 221.

[9] 16 U.S.C. §§ 668dd(d)(1)(A), 1133(b), 3124 (2000).

[10] Mead, 533 U.S. at 230-31.

[11] 323 U.S. 134 (1994).

[12] 16 U.S.C. § 1131(c) (2000).

[13] Id. § 1133(c).

[14] Only uses “compatible with the major purposes” of the Refuge are permitted. 16 U.S.C. § 668dd(d)(1)(A) (2000).

[15] Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, § 303(4)(B)(i), 94 Stat. 2371, 2391 (1980) (codified at 16 U.S.C. § 668dd note (2000)).

[16] Id. § 668dd(a)(2).

[17] Id. § 668dd(e).

[18] See Alaska National Interest Lands Conservation Act § 304(e), 94 Stat. at 2394 (permitting enhancement and rehabilitation of fish stock); 16 U.S.C. § 3203(b) (establishing the goal of maintaining optimum yields of wilderness resources); id. § 3101(b) (providing for maintenance of population size of wildlife).

[19] Student Loan Fund of Idaho, Inc. v. United States Dep’t of Educ., 272 F.3d 1155, 1165 (9th Cir. 2001) (citing Rucker v. Davis, 237 F.3d 1113, 1119 (9th Cir. 2001) (en banc)).

[20] Wilderness Soc. v. United States Fish and Wildlife Serv., 316 F.3d 913, 934 (9th Cir. 2003) (Fletcher, J., dissenting), vacated & reh’g en banc granted, __ F.3d __, 2003 WL 21948745 (9th Cir. 2003).

[21] 16 U.S.C. §§ 3103(b), 3123 (2000).

[22] Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980).

Wards Cove Packing Corp. v. National Marine Fisheries Service

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Wards Cove Packing Corporation (Wards Cove), a commercial fishing company, appealed the district court’s summary judgment decision deferring to the National Marine Fisheries Service (NMFS) on an interpretative rule concerning a sablefish harvest regulation. The Ninth Circuit found no ambiguity in the regulation and therefore, no deference due to NMFS’s interpretation. The Ninth Circuit remanded the case to the district court to find in favor of Wards Cove.

Under the Magnuson-Stevens Fishery Conservation and Management Act[1] and the Northern Pacific Halibut Act,[2] the Secretary of Commerce promulgated rules to create an Individual Fishing Quota (IFQ) system, which provided annual catch limits for sablefish (black cod) (Anoplopoma fimbria) and halibut (Hippoglossus stenolepis) fisheries in Alaska, the Bering Sea, and Aleutian Islands regions.[3] These regulations require commercial fishing operators to file an application with NMFS, and if the application is denied, appeal to NMFS to fish for either halibut or sablefish in the regulated area. An owner must be “qualified,” which entails having “made legal landings of halibut or sablefish”[4] in the qualifying years of 1988, 1989, or 1990.[5] Next, the owner is subjected to an initial quota share based on the owner’s “highest total legal landings of halibut” between 1984 and 1990[6] and “highest total legal landings of sablefish” between 1985 and 1990 (sablefish calculation years).[7]

Wards Cove applied to fish for both halibut and sablefish, but NMFS denied the sablefish permit because Wards Cove had made legal landings in the sablefish calculating years, but not during the more limited qualifying years. Therefore, even though Wards Cove made legal landings of halibut in the qualifying years, NMFS interpreted the regulation to mean that Wards Cove was not “qualified” for a quota share of sablefish.[8] However, the Ninth Circuit held that because the regulations were unambiguous, it would not defer to the agency’s interpretation. Instead, the court found that the regulations based the qualification for a quota share of both halibut and sablefish on the “legal landings of halibut or sablefish” in the qualifying years.[9] Thus, Wards Cove qualified for an initial quota share of sablefish with its landings of halibut. The court reconciled this interpretation with the regulation that calculates the initial quota share, by reasoning that if people were qualified for a permit to land sablefish, but had not landed sablefish in the sablefish calculating years, then they would not receive a quota share. The Ninth Circuit therefore reversed and remanded to the district court to find in favor of Wards Cove and grant Wards Cove attorney fees and costs under the Equal Access to Justice Act.[10]

[1] 16 U.S.C. §§ 1801-1883 (2000).

[2] Id. § 773 (2000).

[3] Pacific Halibut Fisheries, 58 Fed. Reg. 59,375, 59,402 (Nov. 9, 1993) (codified at 50 C.F.R. pt. 679 (2002)).

[4] 50 C.F.R. § 679.40(a)(2)(A) (emphasis added).

[5] Id. § 679.40(a)(3).

[6] Id. § 679.40(a)(4)(i).

[7] Id. § 679.40(a)(4)(ii).

[8] Wards Cove Packing Corp. v. Nat’l Marine Fisheries Serv., 307 F.3d 1214, 1218 (9th Cir. 2002).

[9] Id.

[10] 28 U.S.C. § 2412(d)(1)(A) (2000).

United States v. Antoine

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Defendant Antoine appealed his conviction under the Bald and Golden Eagle Protection Act (BGEPA),[1] as a violation of the Religious Freedom Restoration Act (RFRA).[2] Antoine, a member of the Cowichen Band of the Salish Indian Tribe in British Columbia, obtained dead eagles in Canada and brought the eagle parts to the United States where he exchanged them for money and goods. Antoine alleged that this exchange was part of his native custom of potlatch. The district court assumed that all of Antoine’s conduct was of religious significance.

The BGEPA makes it illegal to “‘knowingly . . . take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle’ or part thereof.”[3] However, the BGEPA contains an exception for members of federally recognized tribes allowing them to “apply for permits to possess and transport eagles or eagle parts for religious purposes.”[4] Antoine was not a member of a federally recognized tribe. Antoine argued that he was exempt from the BGEPA because it imposed a substantial burden on his exercise of religion and it was not the least restrictive means of achieving a compelling government interest. The district court recognized that the BGEPA imposed a substantial burden on Antoine; however, the court found that the act met the standards of strict scrutiny. The Ninth Circuit found that the government had a compelling interest in protecting eagles as a threatened or endangered species. Furthermore, the court found that “the permit scheme was the least restrictive means of pursuing that interest.”[5] The court rejected Antoine’s attempts to distinguish United States v. Hugs,[6] a case which held that the government’s interest in protecting threatened or endangered species was compelling and that the permit scheme was the least restrictive means of realizing that interest. First, Antoine argued that because the United States Fish and Wildlife Service had proposed a rule to remove the bald eagle (Haliaeetus leucocephalus) from the threatened species list, the government’s interest was now less compelling. The Ninth Circuit explained that although the government’s interest may be less, the government is not required to relitigate that interest unless evidence is provided that proves there has been a “substantial change in relevant circumstances.”[7] Thus, the court found the proposed delisting rule to be insufficient to warrant relitigation. Second, Antoine argued that his exclusion from the permit scheme violated RFRA. The court in Hugs did not address whether the permit scheme’s restriction to recognized tribe members was valid.[8] Here, the court noted that the supply of eagles is fixed and that the holding in Hugs that the permit was the least restrictive means of protecting eagles, ended “any challenge to the government’s refusal to increase supply beyond that.”[9] The court noted that RFRA requires that least restrictive means be implemented to avoid substantial burdens on religion, and that Antoine was asking the government to burden other religions more than his. The court concluded that this was not an appropriate claim and that an alternative is not less restrictive if it places additional burdens on others.

The Ninth Circuit concluded that the permit program in the BGEPA did not discriminate facially on the basis of religion because Antoine was excluded based on his affiliation with a nonrecognized tribe, not his religion. Thus, the court found that Antoine’s prosecution was not a violation of RFRA because tribal membership was a rational basis for excluding him from the statutory exception.

[1] 16 U.S.C. §§ 668-668d (2000).

[2] 42 U.S.C. §§ 2000bb-2000bb-4 (2000).

[3] United States v. Antoine, 318 F.3d 919, 920 (9th Cir. 2003) (quoting 16 U.S.C. § 668(a) (2000)).

[4] Id.

[5] Id. at 921.

[6] 109 F.3d 1375 (9th Cir. 1997).

[7] Antoine, 318 F.3d at 922 (emphasis in original).

[8] 109 F.3d 1375 (9th Cir. 1997) (per curiam).

[9] Antoine, 318 F.3d at 923.

Natural Resources Defense Council, Inc. v. Evans

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Two environmental organizations brought suit against the National Marine Fisheries Service (NMFS),[1] challenging its issuance of specifications and management measures for 2001 for the Pacific Coast Groundfish Fisheries without meeting notice and comment requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act)[2] and the Administrative Procedure Act (APA).[3] The district court found that NMFS was required to go through notice and comment under both the Magnuson Act and the APA because it had not shown good cause why the notice and comment procedures should not be considered, and therefore did not warrant the statutory exemption. NMFS appealed, and the Ninth Circuit held that NMFS did not show the exigency required to meet the good cause exception to the notice and comment requirements of the APA. Thus, the Ninth Circuit found that notice and comment was required under the APA and determined that it did not need to decide whether notice and comment was required under the Magnuson Act.

The challenged regulations were specifications for harvest levels of major fish species and management measures for 2001, originally created by the Pacific Fishery Management Council (Pacific Council).[4] Under the Magnuson Act, the Pacific Council creates and revises fishery management plans (FMPs) for Washington, Oregon, California, and Idaho.[5] The Secretary of Commerce reviews the FMPs and amendments and then places them in the Federal Register.[6] The Pacific Council’s Pacific Coast Groundfish FMP–amended in 1990 (through the notice and comment process)–outlined a procedure for the annual management cycle. Under this procedure, the Pacific Council would first gather information throughout the year and hold a public meeting. Then the Council would create recommendations based on the hearings and information gathered, notify the public, and hold a second meeting where it would consider public testimony. Finally, it would adopt regulations on specifications and management methods. After regulations went through this process, the Secretary of Commerce would review the regulations and publish them in the Federal Register.[7] The Secretary waived notice and comment for 2001 and prior years for good cause, claiming that the process the regulation went through at the Council was sufficient and that delay of implementation of these regulations could have harmed the stock and interfered with the timing of the regulations.

The first issue in dispute was whether the regulations were “proposed regulations” subject to the Magnuson Act.[8] However, because both parties agreed that the regulations were subject to the notice and comment requirements of the APA,[9] barring any exception, the court did not address the Magnuson Act dispute. Instead, the court focused on whether NMFS properly invoked the APA’s good cause exception.[10]

First, NMFS argued that the issue of whether it properly invoked the good cause exception in 2001 was moot because new specifications and management measures had been adopted. The Ninth Circuit determined that this case fell into the “capable of repetition, yet evading review” exception to mootness because “(1) the duration of the challenged action [was] too short to allow full litigation before it cease[d], and (2) there [was] a reasonable expectation that the plaintiffs [would] be subjected to it again.”[11] In particular, the yearly update of the regulation was too short a time for full litigation. In addition, the Groundfish FMP “anticipate[d] invocation of the good cause exception for every set of specifications and management measures,” and NMFS had used the exception in this context for over ten years.[12] Thus, the court held that the case was not moot.

Second, NMFS argued that the district court wrongly required it to undergo notice and comment under the APA because its showing of good cause was adequate. The Ninth Circuit found that the proper use of the good cause exception depends on the totality of the circumstances, and that the exception was limited to instances where “compliance would interfere with the agency’s ability to carry out its mission.”[13] The court found that the Pacific Council’s procedures did not allow the public to make comments to NMFS, the final decision maker. Then, the court noted that NMFS did not “engage in any context-specific analysis of the circumstances giving rise to good cause in 2001,” and instead repeated the same reasons for the lack of notice and comment as it had in previous years.[14] In addition, the court looked at precedent that required notice of weekly meetings[15] and found that time limitations for annual regulations were not sufficient grounds to invoke the good cause exception in this case. Therefore, the court held that NMFS did not make a sufficient showing of good cause. However, the court left open the possibility that NMFS could invoke the good cause exception in subsequent years if the specific circumstances of the year were addressed in the invocation. Thus, while the court affirmed the district court’s decision finding that NMFS failed to comply with the APA, it also vacated the ruling that all future specifications and management measures must undergo notice and comment.

 

[1] The defendants were the Secretary of Commerce, NMFS, and the National Oceanic and Atmospheric Administration, collectively NMFS for this summary.

[2] 16 U.S.C. §§ 1801-1883 (2000).

[3] 5 U.S.C. § 553(b)-(c) (2000).

[4] Pacific Council is one of the Regional Fishery Management Councils established by the Magnuson Act, 16 U.S.C. § 1801(b)(5) (2000).

[5] Id.

[6] Id. § 1854(a).

[7] The 2001 regulations were published January 11, 2001. 2001 Groundfish Fishery Specifications and Management Measures, 66 Fed. Reg. 2338 (Jan. 11, 2001).

[8] 16 U.S.C. §§ 1853(c), 1854(b)(1) (2000).

[9] 5 U.S.C. § 553(b) (2000).

[10] Id. § 553(b)(B). Notice and comment may be waived when an agency “for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Id.

[11] Natural Res. Def. Council, Inc. v. Evans (NRDC), 316 F.3d 904, 910 (9th Cir. 2003) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992)) (internal quotations omitted).

[12] Id.

[13] Id. at 911 (quoting Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992)) (internal quotations omitted).

[14] NRDC, 316 F.3d at 912.

[15] Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1486 (9th Cir. 1992).

Conservation Force, Inc. v. Manning

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Hunters and hunting guides residing in New Mexico challenged an Arizona regulation imposing a ten percent cap on nonresident hunting of bull elk and antlered deer as unconstitutional under the Commerce Clause.[1] The district court granted the state summary judgment, finding that the Commerce Clause did not apply because hunting was recreation and not an essential right guaranteed under the Privileges and Immunities Clause.[2] The New Mexican hunters and guides appealed and the Ninth Circuit reversed, holding that the district court applied the wrong test by applying the Privileges and Immunities Clause test. Declaring the dormant Commerce Clause the proper test, the Ninth Circuit found that it applied to the regulation and remanded the case for a finding of whether Arizona met its burden of proving that there were no less discriminatory options for conserving elk and deer and providing recreation for its citizens.

Arizona enjoys world renown for its bull elk and antlered deer populations due in great part to the state’s conservation efforts. Based on perceived wishes of state hunters, the Arizona legislature passed a ten percent cap on nonresident hunting in 1991 to preserve greater hunting opportunities for residents. New Mexico hunters and guides challenged this regulation as a discriminatory burden on interstate commerce.

The Ninth Circuit found that the district court improperly applied the Privileges and Immunities Clause to a dormant Commerce Clause issue. The Ninth Circuit cited a United States Supreme Court case, Oregon Waste Systems, Inc. v. Department of Environmental Quality,[3] which held that under the dormant Commerce Clause the state could not create a regulation that “unjustifiably . . . discriminate[s] against or burden[s] the interstate flow of articles of commerce.”[4] The court defined the proper standard for the applicability of the Commerce Clause as whether it has a “‘substantial effect’” on interstate commerce.[5] The Ninth Circuit found that hunting in Arizona substantially affects interstate commerce in two ways. First, due to the high quality of hunting in Arizona, the cap affected the flow of people between states as much as other recreational activities that the Supreme Court had determined fall under the dormant Commerce Clause.[6] Second, the Ninth Circuit determined that the cap on nonresident hunters had a substantial effect on interstate flow of goods because Arizona allows the interstate and international sale of antlers and nonedible animal products. Thus, the Ninth Circuit reversed the decision of the district court, stating that the dormant Commerce Clause applied to the hunting regulation.

Having decided that the dormant Commerce Clause applied to the Arizona regulation, the Ninth Circuit next considered whether the regulation facially discriminated against nonresidents or was facially neutral, but had a discriminatory effect. Finding that the regulation restricted hunting of game purely on the basis of state residency, the Ninth Circuit held that the regulation was discriminatory, and therefore “subject to the strictest scrutiny.”[7] Based on this standard the court examined whether Arizona had met its burden of proving the regulation was narrowly prescribed to meet legitimate state interests.

Although the Ninth Circuit found that Arizona did provide evidence of legitimate interests for applying the cap, specifically conservation of the game population and maintaining recreational hunting for residents, the Ninth Circuit did not find evidence that the state considered other nondiscriminatory options which would adequately protect that same interest, pointing out that political support of state residents could not justify discrimination. While remanding for an examination of whether the state met this burden, the Ninth Circuit commented that the burden of conservation cannot be placed on nonresidents alone, and that similar regulations in other states would not be sufficient evidence that the cap was narrowly defined to equal the state’s interests.

[1] U.S. Const. art. I, § 8, cl. 3.

[2] U.S. Const. art. IV, § 2, cl. 1.

[3] 511 U.S. 93 (1994).

[4] Id. at 98.

[5] Conservation Force, Inc. v. Manning, 301 F.3d 985, 993 (9th Cir. 2002), cert. denied sub nom. Golightly v. Montoya, 123 S. Ct. 902 (2003) (quoting Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 574 (1997)).

[6] See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 570-71 (holding that camping regulations invoked the Commerce Clause).

[7] Conservation Force, 301 F.3d at 995.

United States v. Senchenko

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In this case, the Ninth Circuit affirmed the conviction of Nikolay Senchenko for a felony violation of the Lacey Act.[2] The government sought to prove that Senchenko had “knowingly engaged in conduct involving an intent to sell wildlife with a market value in excess of $350 . . . by transporting said wildlife knowing it was taken in violation of United States law or regulation.”[3] The jury in the district court found that Senchenko had violated a federal regulation that criminalizes taking wildlife in violation of any state or federal law or regulation when he used a snare to take bears. Because a Washington state regulation prohibits taking bears in this manner,[4] and because the jury found that Senchenko had intended to transport the wildlife knowing that it was taken in violation of a United States regulation, Senchenko’s conduct had violated the Lacey Act.

Senchenko challenged his conviction on several grounds. First, he argued that there was no evidence that he had sold or intended to sell bear parts. Second, Senchenko raised objections as to the government’s methods of establishing that the bear parts at issue had met the jurisdictional requirements for charging a felony under the Lacey Act. Third, he asserted that the federal regulation that the government had used as a predicate for the Lacey Act violation involves an unconstitutional delegation of legislative power. Fourth, Senchenko challenged the validity of the search of his home and car. Finally, the appellant argued that the district court erred in permitting the government to ask his wife about his employment status on cross-examination. The Ninth Circuit rejected all of these assertions and affirmed Senchenko’s conviction.

Senchenko first argued that the government had not established that he had ever sold or intended to sell bear parts. He also asserted that the prosecution had made improper analogies to possession of narcotics in its closing statement that had invited the jury to infer from the volume of bear parts that he had intended to sell them. The Ninth Circuit considered both the number of snares that Senchenko owned the amount of bear gall bladders he possessed in determining that there had indeed been sufficient proof to permit the jury to infer commercial intent. In addition, the court suggested that because 1) the prosecutor had explicitly told the jury that Senchenko was not involved with drugs, 2) the only mention of narcotics had occurred during the prosecution’s closing argument, and 3) the court had provided a limiting instruction, the comparison to narcotics did not appear inappropriate. Moreover, the Ninth Circuit determined that any error would have been harmless, because Senchenko’s wife had testified as to the quantities required by the family’s personal use of gall bladders, and that Senchenko had possessed quantities that exceeded the family’s needs.

Second, Senchenko argued that the prosecution did not appropriately establish the value of the bear parts that he had allegedly taken illegally. The appellant offered the following three contentions to support this claim: 1) the court had improperly allowed the government to aggregate the value of the bear parts found at his home and in his car, 2) the government’s expert had not been competent to establish the value of the gall bladders, and 3) the government improperly used the value of the dried gall bladders rather than the value of the parts as they had existed when he took them. The court dismissed Senchenko’s first contention by rejecting his interpretation of the Lacey Act. The appellant read the Lacey Act to require the government to establish the value of illegally taken wildlife involved in “a single act of transportation.”[5] The court, however, determined that transportation is merely one of several types of conduct that the Lacey Act criminalizes. The statute, according to the Ninth Circuit, focuses on conduct that involves commercial activity. The district court could properly consider Senchenko’s conduct of setting snares, harvesting trapped bears, and taking the parts to his house as “‘a single continuing scheme’”[6] when determining the value of the illegally taken bear parts, because all of these closely related acts involve commercial activity.

Third, the Ninth Circuit determined that the expert whom the government had used to establish the market value of bear parts in the region had been qualified to testify under Federal Rule of Evidence 702[7] by virtue of his experience and training. The expert had been a state wildlife officer for twenty-four years and had investigated illegal sales of wildlife for seven years. Because the expert met the threshold requirements of Rule 702, the court stated that any objections that Senchenko might have raised related to the weight of the witness’s testimony rather than to its admissibility.

Fourth, the court also rejected Senchenko’s contention regarding the valuation of the seized bear parts. Citing United States v. Seaman,[8] Senchenko argued that the “government [had] improperly used the value of the finished goods, i.e. the dried gall bladders, rather than the value of the raw materials, i.e. the wet gall bladders, at the time”[9] that he had initially taken the gall bladders in order to establish the jurisdictional amount. The Ninth Circuit, however, distinguished Seaman from Senchenko’s situation. Seaman involved the improper use of the valuation of firewood that had been chopped, packaged, and seasoned rather than the value of the trees in the condition in which the defendant had taken them from government property. Thus, the Ninth Circuit concluded that Seaman “st[ood] for the proposition that the government cannot consider value added in establishing the jurisdictional amount.”[10] The court found a qualitative difference between processed firewood and gall bladders that a person had merely allowed to dry. Thus, the government had acted properly when it used the value of the dried gall bladders to establish the jurisdictional amount necessary for a felony conviction under the Lacey Act.

Senchenko also asserted that the court should have dismissed his indictment because it failed to charge a federal offense. According to Senchenko, the underlying state regulation that served as a predicate for the Lacey Act violation violated Article I of the Constitution. Because the regulation allowed a violation of a state law to become the basis of a federal offense, Senchenko argued that it presented an unconstitutional delegation of legislative power to the states by Congress. The Ninth Circuit summarily rejected this argument, stating only that it was “without merit, having been rejected by the courts of appeals applying the Lacey Act.”[11]

The Ninth Circuit accorded some merit to Senchenko’s argument that the officers had erred when they submitted an affidavit for a warrant to search his home and car, but the court ultimately determined that these errors did not warrant reversal of his conviction. While the affidavit stated that the officers arrested Senchenko as he was resetting a snare, they had actually arrested him at the trailhead, some distance from the snare. The district court, had however, found that the officers did not act “deliberately or recklessly,” and the Ninth Circuit upheld this determination.[12] Quoting Franks v. Delaware,[13] the Ninth Circuit stated that the threshold test for determining whether to look at evidence other than the erroneous statements in the affidavit is whether the affiants made the errors either “‘knowingly and intentionally, or with reckless disregard for the truth.’”[14] Because the challenged statements in the affidavit here were neither knowingly nor recklessly false, the court did not inquire further into the matter.

Senchenko’s final argument challenged the scope of the government’s cross-examination of his wife. He argued that the court should not have permitted the government to question his wife about his employment status. The Ninth Circuit found that the district court had not abused its discretion in allowing this inquiry, because Senchenko’s employment status was relevant to support an inference that he had intended to sell the bear parts that he had illegally taken.

[1] For further discussion of United States v. Senchenko, see Timothy M. Sullivan, Inadequate Analysis Leading to an Accurate Conclusion: The Ninth Circuit’s Cursory Treatment of the Constitutionality of the Lacey Act in United States v. Senchenko, 29 Envtl. L. __ (1999).

[2] 16 U.S.C. §§ 701 3371-3378 (1994 & Supp. III 1997).

[3] United States v. Senchenko, 133 F.3d 1153, 1155 (9th Cir.), cert. denied, 119 S. Ct. 171 (1998).

[4] Wash. Rev. Code § 232-12-047 (1998).

[5] 133 F.3d at 1156.

[6] Id. at 1157 (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2nd Cir. 1989)).

[7] Fed. R. Evid. 702.

[8] 18 F.3d 649 (9th Cir. 1994).

[9] 133 F.3d at 1158.

[10] Id.

[11] Id.

[12] Id.

[13] 438 U.S. 154 (1978).

[14] 133 F.3d at 1158 (quoting Franks v. Delaware, 438 U.S. at 155).

United States v. McKittrick

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Reply

In this case, the Ninth Circuit upheld Chad McKittrick’s conviction for violating both the Endangered Species Act (ESA or Act)[1] and the Lacey Act[2] when he killed a gray wolf and transported its head and hide to his home. Specifically, the government charged McKittrick with the following three counts: 1) taking the wolf in violation of ESA sections 9(a)(1)(G)[3] and 11(b)(1)[4] and 50 C.F.R. section 17.84(i)(3), 2) possessing the wolf in violation of ESA sections 9(1)(1)(G) and 11(b)(1), and 50 C.F.R. section 17.84(i)(5), and 3) transporting the wolf in violation of Lacey Act sections 3372(a)(1) and 3373(d)(2).[5] A jury convicted McKittrick in a trial before a magistrate judge, and the district court affirmed this conviction. While the court upheld McKittrick’s conviction on each of these counts, it remanded the case to the magistrate judge to reconsider his sentence.

McKittrick raised five arguments on appeal. First, he asserted that the ESA did not protect the wolf that he killed. Second, he contended that the separate counts charging him with both taking and possessing the wolf were duplicative. He argued that he had not knowingly killed the wolf because he had not been aware of what he was shooting. In addition, McKittrick felt that the trial court had erred in its jury instruction regarding the incidental take exception to the ESA. Finally, he asserted that the trial court had erroneously failed to reduce his sentence under the sentencing guidelines by two levels when he accepted responsibility for his actions.

McKittrick argued that the United States Fish and Wildlife Service (FWS) had failed to follow appropriate procedures when it created an experimental population of gray wolves in Yellowstone. Specifically, he contended that 1) FWS erred when it used animals from an unlisted population to create the experimental population, 2) the experimental population was not valid because it was not “wholly separate geographically” from naturally occurring wolves in the area, 3) the Secretary of the Interior (Secretary) did not make findings required by ESA section 4(d),[6] and 4) FWS’s efforts to reintroduce wolves into Yellowstone represented a poor allocation of resources in violation of ESA section 4(f).[7] Because these determinations involved FWS’s interpretations of both the ESA and its own regulations, the Ninth Circuit accorded Chevron[8] deference to the agency’s decisions.

McKittrick asserted that the ESA required FWS to use only endangered wolves when it created an experimental population in an attempt to restore viable numbers of gray wolves to Yellowstone. He argued that because the wolves in the experimental population in Yellowstone had come from Canada, where they were not considered endangered, the experimental population did not meet the ESA’s requirements and therefore did not merit protection under that Act. The Ninth Circuit rejected this interpretation of the ESA, stating that “gray wolves are protected by the ESA based on where they are found, not where they originate.”[9] Thus, when the wolves had crossed the border into Yellowstone, they had become endangered for purposes of the ESA.

In addition, the court noted that the appellant’s interpretation of the ESA violated its spirit. Under his interpretation, the Secretary would be forced to create an experimental population by further depleting populations of animals already at dangerously low levels, thereby circumventing the ESA’s essential purpose of conserving species at all costs. The court adopted FWS’s interpretation of ESA section 10(j)[10] and determined that the experimental population was valid.

The court then rejected McKittrick’s interpretation of ESA section 10(j)(1), which provides that a population qualifies as experimental under the ESA “only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.”[11] The appellant argued that sporadic sightings of isolated wolves in the area deprived the introduced population of experimental status, because the population was not geographically isolated from indigenous wolves. The court, however, read the statute to apply only to populations of indigenous gray wolves, noting that the Federal Register defines a population as consisting of “at least two breeding pairs of gray wolves.”[12] Thus, the mere presence of individual indigenous wolves was not enough to deprive the introduced population of experimental status under the ESA. Judge O’Scannlain suggested in a concurring opinion that the court need only look to the text of the ESA in order to resolve this issue. He read the text to support his conclusion that “[a] single straggler does not a population make.”[13]

The court characterized McKittrick’s arguments regarding potential violations of sections 4(d) and 4(f) of the ESA as “meritless.”[14] McKittrick claimed that the Secretary had failed to comply with section 4(d) because he had failed to recite the words “necessary and advisable” in the special rules that he had promulgated that applied to the establishment of experimental gray wolf populations. He also claimed that because gray wolves are plentiful in both Alaska and Canada, restoration efforts in Yellowstone represented a poor allocation of resources and thus violated section 4(f) of the ESA. The court noted that the “necessary and proper” language required by section 4(d) could be found in the Code of Federal Regulations,[15] and that the Secretary was entitled to discretion in determining how to allocate species conservation resources. Moreover, the court added that the “presence of healthy wolf populations in Canada and Alaska does not, in any event, make the recovery of U.S. populations any less crucial.”[16]

The Ninth Circuit next determined that the government had not violated McKittrick’s constitutional rights when it charged him with both killing and possessing the endangered wolf in separate counts. McKittrick argued that the indictment was duplicative and thus violated his right to be free from double jeopardy under the United States Constitution.[17] The court, however, concluded that the indictment was not duplicative because each separately charged violation “‘requires proof of an additional fact which the other does not.’”[18] The first count required proof that McKittrick took a wolf, and the second did not. The second count, on the other hand, required proof that McKittrick possessed the wolf, which the first count did not. Thus, the indictment did not violate McKittrick’s rights under the double jeopardy clause.

McKittrick next unsuccessfully asserted that the district court had erred when it had instructed the jury. First, he challenged the court’s instructions regarding the requisite mens rea to find him guilty of killing the wolf in violation of the ESA. He argued that the ESA required the government to prove that he knew he was shooting a wolf in order to establish his guilt. The Ninth Circuit, however, upheld the district court’s instructions and held that the ESA violation did not require this level of culpability, because the Act is a general intent offense. Thus, the jury needed only to find that McKittrick knowingly killed an animal–and that animal turned out to be a protected gray wolf.

The appellant also argued that the court had erred in explaining the “incidental take” exception to the jury, and that this error had shifted the burden of proof from the government to him to prove whether or not the exception applied. The Ninth Circuit dismissed the initial assertion by stating that the district court’s instruction regarding the exception precisely followed the language of the regulation defining it. And while the issue of who had the burden of proof to establish the applicability of the incidental take exception under the ESA was not necessarily clear to the Ninth Circuit, the court nevertheless determined that the magistrate judge’s instructions clearly placed the burden on the government.

The Ninth Circuit did, however, find merit in at least one of the appellant’s arguments. McKittrick argued that he should have received a two-level sentencing departure for accepting responsibility for his conduct. The Ninth Circuit stated that McKittrick was entitled to challenge the mens rea requirement of the ESA without sacrificing his eligibility for this reduction. Because the language in the presentence report was ambiguous as to whether or not the magistrate judge denied the reduction based on an impermissible ground, the Ninth Circuit remanded the case for the magistrate to reconsider his sentencing determination.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (1994).

[2] 16 U.S.C. §§ 701, 3371-3378 (1994 & Supp. III 1997).

[3] 16 U.S.C. § 1538(a)(1)(G) (1994).

[4] Id. § 1540(b)(1).

[5] 16 U.S.C. §§ 3372(a)(1), (3372(d)(2) (1994).

[6] 16 U.S.C. § 1533(d) (1994).

[7] Id. § 1533(f).

[8] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984).

[9] United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir. 1998).

[10] Id. § 1539(j).

[11] 16 U.S.C. § 1539(j)(1) (1994).

[12] Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 60,255, 60,256 (1994).

[13] 142 F.3d at 1179 (O’Scannlain, J., concurring).

[14] Id. at 1176.

[15] 50 C.F.R. § 17.84(i)(1)-(2) (1998).

[16] 142 F.3d at 1176.

[17] U.S. Const. amend. V.

[18] 142 F.3d at 1176 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).

Southwest Center for Biological Diversity v. United States Bureau of Reclamation

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The plaintiff, Southwest Center for Biological Diversity (Southwest Center), alleged violations of the Endangered Species Act (ESA)[1] by the United States Bureau of Reclamation (the Bureau). The plaintiff asserted that the Bureau’s operations on the Lake Mead delta behind Hoover Dam on the Lower Colorado River caused high water levels that inundated the habitat of the endangered southwestern willow flycatcher (Flycatcher). Southwest claimed that the Bureau had violated ESA section 7[2] by jeopardizing the continued existence of the Flycatcher and section 9[3] by “taking” Flycatchers through habitat modification without a valid incidental take permit.

On appeal, appellants raised two issues. First, Southwest Center sought an injunction requiring the Bureau to draw down the level of Lake Mead in order to preserve Flycatcher habitat in the delta. Second, appellants claimed that the Secretary of the Interior (Secretary), acting through the United States Fish and Wildlife Service (FWS), had violated the “arbitrary and capricious” standard of the Administrative Procedure Act (APA)[4] when FWS adopted a final reasonable and prudent alternative (RPA) that differed substantially from its draft RPA. In addition, seven southwestern states (the States) claimed that they were indispensable parties and that the suit should have been dismissed for failure to join them.

In upholding the district court’s grant of summary judgment for lack of subject matter jurisdiction over the claims against the Bureau, the Ninth Circuit held that Southwest Center had not complied with the notice requirement in the ESA’s citizen suit provision. Under this requirement, any citizen bringing suit under the ESA must provide written notice to both the Secretary and the alleged violator at least sixty days prior to filing suit.[5] Three letters sent to the Secretary and the Bureau failed to strictly comply with the notice requirement. Although the letters were timely and explicitly indicated intent to sue under the ESA, they did not sufficiently alert the Secretary and the Bureau to the specific violations that Southwest eventually alleged.

The court explained that the purpose of the notice requirement is to require the provision of sufficient information of a violation so that the alleged violator can identify and attempt to abate the alleged violation. Southwest Center’s letters failed to provide such information. One of the letters complained that the Bureau had illegally “taken” listed species on the Lower Colorado River, but none of the letters mentioned the Bureau’s operations at Hoover Dam or the Flycatcher habitat at Lake Mead. A fourth letter claimed that the Bureau’s operations at Hoover Dam were jeopardizing the continued existence of the Flycatcher, but the appellants conceded that this letter failed to satisfy the notice requirement because it was sent to FWS and not the Secretary or the Bureau.

After it dismissed Southwest Center’s complaint against the Bureau, the district court also dismissed as moot the States’ motion to establish indispensable party status. The Ninth Circuit affirmed. Although the States had a clear interest in the water level at Lake Mead, their claim became moot as a matter of law once the plaintiff’s complaint was dismissed.

Southwest Center’s complaint against the Secretary claimed that he, acting through FWS, had violated the APA by acting arbitrarily, capriciously, and contrary to the ESA.[6] The ESA required FWS to suggest reasonable and prudent alternatives not likely to jeopardize the continued existence of the Flycatcher or to result in the destruction or adverse modification of its habitat.[7] FWS adopted a final RPA that, unlike its draft RPA, neither required the Bureau to immediately protect and maintain the Flycatcher’s habitat at Lake Mead nor to maintain substitute habitat at Roosevelt Lake, Arizona. FWS omitted these measures from its final RPA because the Bureau alleged that it lacked discretion to reduce the level of Lake Mead. Southwest Center claimed that the Secretary had improperly rejected the draft RPA because he had failed to independently review the Bureau’s opinion that it lacked such discretion.

The district court repudiated Southwest Center’s argument, holding that the Secretary’s decision not to adopt the draft RPA was not arbitrary or capricious, and the Ninth Circuit affirmed. In deciding whether the Secretary has acted arbitrarily and capriciously or has abused his discretion in adopting an RPA, a court should focus only on the standards and requirements of the ESA and whether the final RPA meets them. The ESA required the Secretary to adopt an RPA that would protect the Flycatcher from jeopardy and that could be implemented, not necessarily the RPA that was originally favored or that would most effectively protect the species. In addition, the ESA did not require the Secretary to explain why one RPA was chosen over another, to base his decision solely on apolitical factors, or to maintain his opinion that preserving the Lake Mead habitat was necessary to the Flycatcher’s survival. Finally, the court noted that Southwest Center had not presented any convincing evidence that the final RPA would fail to sufficiently protect the Flycatcher.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (1994).

[2] Id. § 1536(a)(2).

[3] Id. § 1538.

[4] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997). The arbitrary and capricious standard is found at 5 U.S.C. § 706(2)(A) (1994).

[5] 16 U.S.C. § 1540(g)(2)(A)(i) (1994).

[6] 5 U.S.C. § 706(2)(A) (1994).

[7] 16 U.S.C. § 1536(b)(3)(A) (1994); see also 50 C.F.R. § 402.14(h)(3) (1998).

Natural Resources Defense Council v. Houston

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The United States Bureau of Reclamation (the Bureau) constructed the Friant dam unit (Friant Dam) of the Central Valley Project on the San Joaquin River in California in 1944. In the late 1940s, the Bureau began entering into forty-year contracts with irrigation and water districts for the supply of water from the newly built dam. All of the contract holders had a right of renewal when their contracts expired.

In 1988, fifteen environmental groups, led by the Natural Resources Defense Council (NRDC), filed suit against the Bureau after it began negotiations for renewal of the first contract to expire. The plaintiffs’ amended complaint alleged violations of the Endangered Species Act (ESA),[2] the National Environmental Policy Act (NEPA),[3] section 8 of the Reclamation Act,[4] and section 5937 of the California Fish and Game Code.[5] In 1989, the irrigation and water districts were permitted to intervene.

The Friant Dam adversely affects the endangered Sacramento winter-run chinook salmon and other listed species in the Friant Service Area by impounding the San Joaquin’s water and diverting it to irrigation canals, leaving a long stretch of the San Joaquin dry. NRDC claimed that the Bureau had violated ESA section 7(a)(2)[6] by failing to timely consult with the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) on the effects of the contract renewals on salmon and other protected species. The group also claimed that NMFS and FWS had violated ESA section 7(d)[7] by renewing the contracts prior to consultation, constituting an irreversible and irretrievable commitment of resources.

The Ninth Circuit first held that the contract renewals qualified as agency actions under the ESA.[8] Sierra Club v. Babbitt,[9] which prohibits application of the ESA to agency actions that involve no discretionary authority, did not save the Bureau because the federal government retained some discretionary authority during the negotiation process. The federal reclamation laws state that contracts are to be renewed “under stated terms and conditions mutually agreeable to the parties,”[10] that water rights are based on the amount of available project water,[11] and that the Secretary of the Interior has discretion to set rates to cover operation and maintenance costs.[12] Additionally, under O’Neill v. United States,[13] the Bureau retained discretion throughout the life of the contracts to ensure compliance with subsequently enacted federal law. Even though the districts had “a first right . . . to a stated share or quantity of the project’s available water supply,”[14] the Bureau had discretion to reduce the amount of water available for sale or alter other key contract terms if necessary to comply with the ESA.

After holding that the contract renewals were discretionary agency actions, the Ninth Circuit held that the Bureau had violated the procedural mandate of ESA section 7(a)(2) by failing to request formal consultation with NMFS before renewing the contracts. Once the chinook was listed, the Bureau had independently determined that the contract renewals were not likely to adversely affect the salmon. The Director of NMFS refused to concur in this determination, but stated that formal consultation was not required. The court held that the Bureau had a legal obligation to at least request formal consultation with NMFS. The Bureau had acted arbitrarily and capriciously by relying on NMFS’s assurances that consultation was not required.

The Ninth Circuit also held that the Bureau had failed to timely consult with FWS on other endangered species in the vicinity of the Friant Dam. FWS issued a “no jeopardy” Biological Opinion (BiOp) in October 1991, but by that time, ten of the Friant contracts had already been renewed. The court explained that if the BiOp had been timely, it might have allowed for more flexibility in modifying the contracts, because FWS may make nonbinding conservation recommendations even when it reaches a “no jeopardy” determination.[15] Therefore, the issuance of the BiOp had not mooted NRDC’s consultation claim.

Next, the court ruled that by renewing the contracts, the Bureau had violated ESA section 7(d). This section prohibits irreversible or irretrievable commitment of resources that have the effect of foreclosing the formulation or implementation of reasonable and prudent alternative measures that might have arisen during consultation. The allocation of water under the contract renewals clearly constituted such a commitment. A clause in each of the contracts permitting modifications to the contracts in order to comply with federal law did not save the contract renewals from violating section 7(d), because this clause limited conservation-based modifications to minor adjustments only and prohibited adjustments in the amount of water delivered.

One of the contract holders, Orange Cove Irrigation District, claimed that formal consultation was not required for its contract. The Bureau and FWS had informally consulted and mutually agreed that the Orange Cove contract was not likely to adversely affect any protected species. Both the informal consultation and the renewal of the Orange Cove contract occurred before the Chinook salmon was listed, and Orange Cove argued that no agency action had occurred after the listing to require reinitiation of consultation under the ESA. The Ninth Circuit rejected this argument by pointing to a clause in the contract that conditioned the contract’s binding effect on validation in state court. The California courts did not validate the contract until February 1990, six months after the listing of the Chinook. The Bureau’s delivery of water in the interim constituted discretionary agency action, triggering an affirmative duty for the Bureau to withdraw the Orange Cove contract and initiate consultation with NMFS.

After finding the foregoing ESA violations, the Ninth Circuit affirmed the district court’s decision to rescind the contracts under the authority of the APA, which requires courts to set aside agency actions that are arbitrary, capricious, or not in accordance with law.[16] The Ninth Circuit held that the rescission of the contracts had been well within the discretion of the district court. While the Ninth Circuit had held in an earlier case that injunctive relief is the proper remedy for substantial procedural violations of the ESA,[17] that case did not appear to involve an irreversible and irretrievable commitment of resources. Here, by renewing the contracts, the Bureau had eliminated the opportunity to choose other courses of action. Therefore, injunctive relief would be meaningless unless the contracts were also invalidated.

The district court dismissed NRDC’s challenge under the ESA to the substantive validity of the BiOp and its claim under NEPA that the Bureau was required to conduct an environmental impact statement (EIS) on the Friant Dam. The district court reasoned that the remedy of contract rescission had afforded NRDC complete relief, thereby rendering these issues moot. Furthermore, Congress had already required the preparation of an EIS on the operations of the Friant Dam in 1992 with the passage of the Central Valley Project Improvement Act (CVPIA).[18] Accordingly, the Ninth Circuit affirmed the district court’s holding.

Finally, NRDC claimed that section 8 of the Reclamation Act required the Bureau to comply with section 5937 of the California Fish and Game Code. Under California v. United States,[19] section 8 requires the federal government to comply with state water laws unless a federal statute clearly preempts state law. NRDC argued that section 8 requires the Bureau to comply with section 5937, which requires dam owners to allow sufficient water for fish to pass through a fishway or over, around, or through the dam.[20] The district court concluded that federal law did not prima facie preempt section 5937, and the Ninth Circuit agreed. However, the district court had erred when it had determined that the section 5937 claim lacked ripeness once the contracts were rescinded. The section 5937 claim–if applicable–was directed toward the Bureau, which has an independent duty to comply with section 5937 regardless of any contractual arrangements. The Ninth Circuit reversed and remanded for a determination of whether section 5937 applies to the Friant Dam under state law. If so, the Ninth Circuit directed the lower court to determine whether section 5937 of the California Fish and Game Code is preempted by the CVPIA, which requires the Secretary to dedicate, deliver, and manage specified amounts of water in order to protect, restore, and enhance fish and wildlife.[21]

[1] For further discussion of Natural Resources Defense Council v. Houston, see Nathan Baker, Water, Water, Everywhere, and at Last a Drop for Salmon?, 29 Envtl. L. __ (1999).

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (1994).

[3] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994 & Supp. III 1997).

[4] 43 U.S.C. § 383 (1994).

[5] Cal. Fish and Game Code § 5937 (West 1998).

[6] 16 U.S.C. § 1536(a)(2) (1994).

[7] Id. § 1536(d).

[8] See id. § 1536(a)(2).

[9] 65 F.3d 1502 (9th Cir. 1995).

[10] 43 U.S.C. § 485h-1(1) (1994).

[11] Id. § 485h-1(4).

[12] Id. § 485h(e).

[13] 50 F.3d 677 (9th Cir. 1995).

[14] 43 U.S.C. § 485h-1(4) (1994).

[15] 50 C.F.R. § 402.14(g)(6), (j) (1998).

[16] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997). The arbitrary and capricious standard is found at 5 U.S.C. § 706(2)(A) (1994).

[17] Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988).

[18] Reclamation Projects Authorization and Adjustments Act of 1992 (CVPIA), Pub. L. No. 102-575, §§ 3404(b)(1), 3409, 106 Stat. 4600, 4709, 4730.

[19] 438 U.S. 645 (1978), on remand, 521 F.Supp. 491 (E.D. Cal. 1980) and 509 F.Supp. 867 (E.D. Cal. 1981), aff’d in part, rev’d in part, 694 F.2d 1171 (9th Cir. 1982).

[20] Cal. Fish and Game Code § 5937 (West 1998).

[21] CVPIA § 3406(b)(1), 106 Stat. at 4714.

Foss v. National Marine Fisheries Service

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Reply

In 1993, the Secretary of Commerce instituted an Individual Fishing Quota (IFQ) program in an effort to control overfishing of halibut and sablefish resources and to create “a stable market for transferable fishing rights.”[1] The plaintiff, a commercial fisherman whose permit application was rejected because it was submitted forty-five days past the regulatory deadline, brought this case against the National Marine Fisheries Service (NMFS), claiming that NMFS violated his procedural due process rights by not providing him with actual notice of the IFQ program. The plaintiff also claimed that NMFS had violated the Administrative Procedure Act (APA)[2] by arbitrarily and capriciously adopting a fixed application deadline without providing actual notice and by not providing an adequate opportunity for notice and comment before promulgating its application deadline. Finally, the plaintiff argued that the court should equitably toll the application deadline for the plaintiff because an employee of the International Pacific Halibut Commission (IPHC) had informed him that NMFS had proposed establishment of the IFQ program but that nothing was imminent, when in fact at that time the final rules establishing the IFQ program were only eleven months from final publication.

The Ninth Circuit first held that for purposes of the Due Process Clause of the Fifth Amendment, the applicant held a protectable property interest in receiving a permit. NMFS’s regulations require the agency to grant an IFQ permit to any qualified person who meets objective and explicit regulatory criteria. All applicants who have previously fished for halibut or sablefish during specified years are automatically entitled to quota shares of the allowable catch provided that they comply with the program’s procedural requirements. Finally, an IFQ permit can be sold, transferred, leased, inherited, or divided as marital property in a dissolution.

Next, the Ninth Circuit held that NMFS had not violated the applicant’s procedural due process rights. The court applied the Matthews v. Eldridge[3] balancing test and determined that NMFS’s notification and appeals processes were both constitutionally sound. Under the first factor of the test, the plaintiff clearly had a valuable private property interest in receiving the permit. Under the second factor, the risk of an erroneous deprivation of the plaintiff’s interest was low. NMFS set the application period so that it would fall during months when the commercial fishing fleet was not active. NMFS also published formal notices in the Federal Register; sent applications to thousands of potential applicants and resent applications that were returned undelivered; and publicized the IFQ program and its deadlines in industry magazines, news releases, paid advertisements, public service announcements, and information workshops. Additionally, NMFS’s appeals procedure, which allowed the applicant a thorough review of his claim, was more than adequate. Under the third factor of the Matthews balancing test, NMFS’s procedures, especially its strict application deadline, served its compelling interest in establishing a fixed pool with a stable market value. An actual notice requirement would have placed an unwarranted burden on NMFS.

The Ninth Circuit also held that NMFS had not violated the Administrative Procedure Act. NMFS had not acted arbitrarily and capriciously by adopting the 180-day regulatory application period without actual notice, because there was a rational connection between the agency’s procedures and its objectives. Additionally, NMFS provided an adequate opportunity for notice and comment when it published its proposed rule eleven months before adopting its final rules and thirteen months before publishing its application period. After the proposed rules were published, more than seventeen pages of public comments and responses were published in the Federal Register. NMFS’s rule announcing the application period complied with the APA because it was in character with the original proposed rules and was a logical outgrowth of the public comments the agency received.

Finally, NMFS properly rejected the appellant’s application because it violated the IFQ’s regulatory deadline. Equitable tolling should be sparingly used against the government and would not have been appropriate in this situation. The IPHC employee who had informed the plaintiff that the program was not imminent was at worst guilty of excusable neglect, not wrongful conduct. Neither was the plaintiff’s change of residence an extraordinary circumstance beyond his control that hindered him from submitting his application in a timely fashion.

[1] 50 C.F.R. pt. 679 (1998); see also Pacific Halibut Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands; Limited Access Management of Fisheries off Alaska, 57 Fed. Reg. 57,130 (Dec. 2, 1992); Pacific Halibut Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands; Limited Access Management of Fisheries off Alaska, 58 Fed. Reg. 59,375(Nov. 9, 1993).

[2] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997).

[3] Matthews v. Eldridge, 424 U.S. 319, 335 (1976).