Home » Case Summaries » 2008 » Salmon Spawning & Recovery Alliance v. Guiterrez

 
 

Salmon Spawning & Recovery Alliance v. Guiterrez

 

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Conservation groups Salmon Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively Recovery Alliance) filed suit against the National Marine Fisheries Service (NMFS), the Department of Commerce, the State Department, and the official heads of each agency, alleging that United States’s entry and participation in the Pacific Salmon Treaty (Treaty)[1] violated the Endangered Species Act (ESA)[2] and the Administrative Procedure Act (APA).[3] The United States District Court for the Western District of Washington dismissed Recovery Alliance’s complaint for lack of Article III standing. On appeal, the Ninth Circuit affirmed the district court’s conclusions that Recovery Alliance lacked standing to challenge the adequacy of NMFS’ biological opinion (1999 BiOp) authorizing entry into the Treaty and the agencies’ continued implementation of the Treaty. However, the Ninth Circuit held that Recovery Alliance had standing to challenge the agencies’ failure to reinitiate consultation on the 1999 BiOp. The Ninth Circuit accordingly remanded Recovery Alliance’s remaining claim to the district court.

In 1999, the United States and Canada entered into the Treaty to manage chinook and coho salmon and steelhead trout populations (collectively salmon). The salmon originate in the Puget Sound, lower Columbia, and Snake Rivers, migrate northward across the international borders toward Alaskan and British Columbian waters, and then return to their rivers of origin to spawn and die. The Treaty, as implemented by the joint Pacific Salmon Commission, established annual harvest regimes for coastal fisheries based on abundance estimates, instead of the fixed harvest ceilings used in the first 1985 treaty, which did not change annually. The harvest regimes are subject to approval by the Secretary of State, in consultation with the Secretary of Commerce and Secretary of Interior.[4]

Because the Treaty affected twenty-six populations of salmon listed as threatened or endangered under the ESA, the United States conditioned the implementation of the Treaty on its compliance with the ESA’s section 7(a)(2) formal consultation requirement[5] and implementing regulations.[6] The State Department requested a biological opinion (BiOp) from NMFS to evaluate whether “Canadian take under the levels permitted by the Treaty” was likely to jeopardize the continued existence of any endangered or threatened species.[7] Because NMFS’ 1999 BiOp determined the Treaty would not jeopardize listed salmon, it did not have to determine “reasonable and prudent alternatives” (RPA) to avoid jeopardy.[8]

Recovery Alliance, concerned that the Treaty permitted Canadian fisheries to overharvest salmon populations protected by the ESA, sued the acting and consulting agencies and officials under the ESA and the APA. More specifically, Recovery Alliance alleged 1) the 1999 BiOp authorizing the United States’s entry into the Treaty violated sections 7 and 9 of the ESA and section 5 of the APA, 2) the agencies’ continued participation in the Treaty jeopardized listed salmon in violation of section 7(a)(2) of the ESA and section 5 of the APA, and 3) the agencies’ failure to reinitiate consultation after NFMS published new information in 2005 about salmon overharvesting violated section 7 of the ESA. The district court ruled that Recovery Alliance lacked the causation and redressibility elements for standing under the “case and controversy” requirements of Article III.[9]

Recovery Alliance appealed the district court’s dismissal and the Ninth Circuit reviewed the district court’s decision on standing de novo.[10] To establish Article III standing, a plaintiff must establish 1) an injury in fact that is concrete and particularized, and actual or imminent, 2) that the injury is fairly traceable to the challenged conduct, and 3) that the injury is likely to be redressed by a favorable court decision.[11] In addition to establishing Article III standing, the court noted that Recovery Alliance must establish statutory standing.

The Ninth Circuit first addressed Recovery Alliance’s allegation that the 1999 BiOp authorizing the United States’s entry into the Treaty violated the requirements of section 7 of the ESA and section 5 of the APA. The Ninth Circuit characterized this claim as procedural and stated that to establish a procedural injury, a plaintiff must show that the “procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.”[12] Recovery Alliance asserted that the 1999 BiOp’s foundational flaws[13] failed to ensure agency achievement of the ESA’s purpose of species preservation, thus harming Recovery Alliance’s interest in salmon preservation.

Although Recovery Alliance established a procedural injury, the Ninth Circuit ruled that it failed to establish standing because it lacked a redressable claim. First, the Ninth Circuit explained that a showing of procedural injury “lessens a plaintiff’s burden” of showing causation and redressability.[14] Thus, a plaintiff must only show they have a “procedural right that, if exercised, could protect their concrete interests.”[15] Despite this relaxed requirement, the Ninth Circuit ruled that Recovery Alliance could not demonstrate that a favorable court decision could protect their concrete interests. The court emphasized that the BiOp authorized the United States’s entry into the Treaty with Canada and set fishing levels that could only be revisited if agreed upon by both countries. Thus, even if Recovery Alliance proved a procedural violation of the ESA, the Ninth Circuit reasoned that it could not undo the United States’s decision to enter into the treaty nine years ago and lacked the power to order the Executive Branch to withdraw from the Treaty.[16] In essence, the Ninth Circuit explained that setting aside the BiOp, which the court could do, could not remedy the harm asserted by Recovery Alliance because the Treaty would remain in place. Thus, the Ninth Circuit affirmed the district court’s dismissal of Recovery Alliance’s claim for lack of standing.

Next, the Ninth Circuit addressed Recovery Alliance’s claim that the agencies’ continued participation in the implementation of the treaty violated the substantive duty to avoid jeopardy to listed species under section 7(a)(2) of the ESA. Essentially, Recovery Alliance challenged the agencies’ decision to allow excessive Canadian harvesting under the terms of the Treaty. Although the court assumed Recovery Alliance alleged an adequate injury to its interest in salmon preservation, it ruled that Recovery Alliance lacked standing, because the overharvesting permitted under the Treaty was not fairly traceable to the United States’s failure to withdraw from the Treaty or failure to take additional conservation measures in Canada. The Ninth Circuit reasoned that if the United States withdrew from the Treaty, “harvesting of listed species would arguably increase,”[17] because any abundance-based limits would lapse. Additionally, even if the United States asked Canada to implement conservation measures, Canada could refuse.

The Ninth Circuit also ruled that Recovery Alliance also lacked standing for their related claim that the agencies’ failure to offset the effects of Canadian overharvesting by establishing conservation measures within United States’s jurisdiction, lacked standing. The court reasoned that “redressibility poses an upstream battle” since a court order that the agencies violated the ESA and APA was unlikely to redress the alleged injury, because it would result in uncertain discretionary action by the agencies,[18] including the possibility of the agencies taking no further agency action so as to avoid section 7’s no jeopardy requirement. Thus, the Ninth Circuit affirmed the district court’s dismissal of Recovery Alliance’s second claim.

Finally, the Ninth Circuit addressed whether Recovery Alliance established Article III standing, statutory standing, and associational standing in claiming that the agencies’ failure to reinitiate consultation on the 1999 BiOp following publication of new information about listed salmon, violated the ESA and implementing regulations.[19] The court ruled that Recovery Alliance properly alleged a procedural injury, which relaxed the standard for causation and redressibility. With a relaxed burden, the Ninth Circuit held that Recovery Alliance’s claim was adequately connected to the agencies’ failure to reinitiate consultation. Furthermore, the court reasoned that requiring the agencies to reinitiate consultation would provide Recovery Alliance with a remedy that did not compel the revocation or renegotiation of the Treaty. Thus, the court held Recovery Alliance established standing under Article III. The court also ruled that Recovery Alliance’s claims had statutory standing to challenge the State Department’s failure to reinitiate consultation under the ESA’s citizen suit provision[20] as well as under the APA.[21] Additionally, the court held Recovery Alliance had established associational standing because each of the groups’ members had standing to sue, the groups sought to protect interests germane to their conservation purposes, and neither the claims asserted nor the relief requested required participation of the individual members.

In conclusion, the Ninth Circuit affirmed the district court’s conclusion that Recovery Alliance lacked standing to challenge the adequacy of NMFS biological opinion authorizing entry into the Treaty and the agencies’ continued implementation of the Treaty. However, the Ninth Circuit reversed the district court’s ruling that Recovery Alliance lacked standing to challenge the agencies’ failure to reinitiate consultation following the publication of new information about listed salmon. The Ninth Circuit held that Recovery Alliance had Article III standing, statutory standing, and associational standing to challenge the agencies’ failure to reinitiate consultation. The Ninth Circuit remanded Recovery Alliance’s remaining claim to the district court.


[1] The United States and Canada entered into the first Pacific Salmon Treaty in 1985, which expired in 1992. See Pacific Salmon Treaty Act, U.S.-Can., Jan. 28, 1985, 99 Stat. 7 (Mar. 17, 1985). In 1999, the United States and Canada entered into another agreement using the framework of the 1985 treaty. See Pacific Salmon Treaty Act of 1985, 16 U.S.C. §§ 3631-3645 (2006).

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

[3] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

[4] 16 U.S.C. § 3633(a)(2) (2006).

[5] 16 U.S.C. § 1536(a)(2) (2006).

[6] 50 C.F.R. § 402.14(c), 402.14(l)(1) (2008).

[7] Salmon Spawning & Recovery Alliance v. Gutierrez (Recovery Alliance), 545 F.3d 1220, 1224 (9th Cir. 2008).

[8] 16 U.S.C. § 1536(b)(3)(A) (2006); 50 C.F.R. § 402.14(h)(3) (2008). NMFS also issued an “incidental take statement” that exempted the State Department from the taking prohibition of the ESA. See 16 U.S.C. § 1536(b)(4) (2006).

[9] U.S. Const. art. III, § 2.

[10] Citizens for Better Forestry v. U.S. Department of Agriculture, 341 F.3d 961, 969 (9th Cir. 2003).

[11] Recovery Alliance, 545 F.3d at 1225(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

[12] Citizens for Better Forestry, 341 F.3d at 969.

[13] Recovery Alliance, 545 F.3d at 1225.For example, Recovery Alliance claimed that the BiOp “improperly compared only the Treaty’s effect on harvest rates to harvest rates in the absence of the Treaty, instead of aggregating the effects of take under the Treaty, other harvest impacts, and non-harvest impacts.” Id. at 1225.

[14] Id. at 1226(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)).

[15] Id.(citing Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005), overruled on other grounds, Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007)).

[16] Id.(citing Earth Island Inst. v. Christopher, 6 F.3d 648, 652-53 (9th Cir. 1993)).

[17] Id. at 1228.

[18] Id.

[19] 50 C.F.R. § 402.16 (2008).Consultation under section 7 must be reinitiated where 1) discretionary federal involvement or control has been retained or authorized, and 2) the amount or extent of taking specified is exceeded, new information reveals effects that may affect listed species or critical habitat in a manner not considered, the action is subsequently modified so as to cause an effect to the listed species or critical habitat not previously considered, or a new species is listed or critical habitat designated. Id.

[20] Endangered Species Act of 1973, 16 U.S.C. § 1540(g)(1)(A) (2006).

[21] See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001) (explaining that standing to sue under APA existed when the complaint alleged an agency’s failure to comply with section 7 of the ESA as arbitrary, capricious, and not in accordance with procedures).

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