Plaintiffs' MSJ brf - Endangered Species & Wetlands Report

JOHN M. GROEN
Groen Stephens & Klinge, LLP
2101 - 112th Avenue NE, Suite 110
Bellevue, Washington 98004
Telephone: (425) 453-6206
Facsimile: (425) 453-6224
jgroen@GSKonline.com
OSB No. 93160
ROBIN L. RIVETT
RUSSELL C. BROOKS
Pacific Legal Foundation
10940 NE 33rd Place, Suite 109
Bellevue, Washington 98004
Telephone: (425) 576-0484
Facsimile: (425) 576-9565
rlr@pacificlegal.org
rb@pacificlegal.org
Attorneys for Plaintiffs
CALIFORNIA STATE GRANGE, et al.,
v.
Plaintiffs,
DONALD L. EVANS, et al.,
and
Defendants,
WATERWATCH OF OREGON, et al.,
and
YUROK TRIBE,
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT
Defendant-Intervenors,
Defendant-Intervenor.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 02-6044-HO
PLAINTIFFS’
MEMORANDUM IN
SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
Note on Motion Calendar:
Telephonic Oral Argument
January 5, 2005, 9:00 a.m.

PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. NMFS’s SONC Coho Designation and Listing Process . . . . . . . . . . . . . . . . . . . . . . . 2
B. The Alsea Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Appeal of the Alsea Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. NMFS’s SONC COHO LISTING IS UNLAWFUL UNDER THE
ESA BECAUSE IT ILLEGALLY DIFFERENTIATES BETWEEN
“NATURALLY SPAWNED” AND HATCHERY COHO . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Both the ESA’s Clear Language and Congressional Intent Allow
NMFS to List Only Whole Species in a Distinct Population Segment . . . . . . . . . . . . 8
B. NMFS Violated the ESA by Treating Hatchery SONC Coho
and “Naturally Spawned” Coho Differently Under the ESA . . . . . . . . . . . . . . . . . . . 12
III. THIS COURT RELIED PROPERLY ON THE ESA AND
THE ESA’S LEGISLATIVE HISTORY TO INVALIDATE NMFS’s
IDENTICAL OREGON COAST COHO LISTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
IV. THIS COURT SHOULD SET ASIDE THE ILLEGAL SONC
COHO LISTING BECAUSE THE APPROPRIATE REMEDY FOR
AN UNLAWFUL AGENCY RULE IS TO SET THE RULE ASIDE . . . . . . . . . . . . . . 15
A. NMFS’s Ongoing Administrative Review Does Not Serve
as a Valid Basis for Keeping NMFS’s Current Illegal Rule in Place . . . . . . . . . . . . . 15
B. Under the APA, Congress Left the Court with No Choice
Other Than to Set Aside NMFS’s Unlawful Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
C. Even Under a Rule for Exceptions Created by Some Courts, the Proper
Remedy for the Unlawful SONC Coho Listing Is to Set It Aside . . . . . . . . . . . . . . . 18

D. Even If the Court Chooses to “Balance the Equities,” It Should Nonetheless
Set Aside the Illegal SONC Coho Listing Absent Substantial, Actual
Evidence That the Coho Would Suffer Significant, Foreseeable Harm . . . . . . . . . . . 21
E. Leaving the Illegal SONC Coho Listing In Place, Despite
Congress’ APA Mandate, Will Impose Significant Hardship
and Serious Harm on the Granges and Their Members . . . . . . . . . . . . . . . . . . . . . . 23
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page ii
Page

PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page iii
TABLE OF AUTHORITIES
Cases
Page
Alsea Valley Alliance v. Department of Commerce,
358 F.3d 1181 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 21
Alsea Valley Alliance v. Evans,
161 F. Supp. 2d 1154 (D. Or. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Brower v. Evans, 257 F.3d 1058 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Building Industry Legal Defense Foundation v. Norton,
231 F. Supp. 2d 100 (D.D.C. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Chevron, U.S.A. v. Natural Resources Defense Council,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Defenders of Wildlife v. Norton,
258 F.3d 1136 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11
Endangered Species Committee of the Building Industry
Association of Southern California v. Babbitt,
852 F. Supp. 32 (D.D.C. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19, 21
Federal Election Commission v.
Democratic Senatorial Campaign Committee,
454 U.S. 27 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
Fertilizer Institute v. Environmental Protection Agency,
935 F.2d 1303 (D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 17
Idaho Farm Bureau Federation v. Babbitt,
58 F.3d 1392 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
Immigration and Naturalization Service v. Cardoza-Fonseca,
480 U.S. 421 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
International Union, United Mine Workers of America v.
Federal Mine Safety and Health Administration,
920 F.2d 960 (D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Leslie Salt Co. v. United States,
55 F.3d 1388 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

National Association of Home Builders (NAHB) v. Norton,
No. 00-CV-903, 2001 WL 1876349 (D. Ariz. Sept. 21, 2001) . . . . . . . . . . . . . . . . . . . . . . 22
Natural Resources Defense Council (NRDC) v.
United States Department of Interior,
275 F. Supp. 2d 1136 (C.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Oregon Natural Resources Council v. Daley,
6 F. Supp. 2d 1139 (D. Or. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pacific Coast Federation of Fishermen’s Associations v. United States Bureau of
Reclamation, Civ. No. C-02-02006 SBA, (N.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . 24-25
Pacific Rivers Council v. Thomas,
30 F.3d 1050 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Pyramid Lake Paiute Tribe of Indians v.
United States Department of the Navy,
898 F.2d 1410 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers,
531 U.S. 159 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Southwest Center for Biological Diversity v. Babbitt,
980 F. Supp. 1080 (D. Ariz. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States Steel Corp. v. Environmental Protection Agency,
595 F.2d 207 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Monsanto, 491 U.S. 600 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council,
435 U.S. 519 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Western Oil & Gas Association v. Environmental Protection Agency,
633 F.2d 803 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page iv
Statutes
16 U.S.C. § 1531(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
§ 1532(16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8
5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
§ 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16
Page

PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page v
Federal Regulations
56 Fed. Reg. 58,612 (Nov. 20, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
58 Fed. Reg. 17,573 (Apr. 5, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
60 Fed. Reg. 38,011 (July 25, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
62 Fed. Reg. 24,588 (May 6, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 12
69 Fed. Reg. 31,3354 (June 3, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
69 Fed. Reg. 33,102 (June 14, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 23
Miscellaneous
H. Conf. Rep. No. 95-1804 (1978), reprinted in
1978 U.S.C.C.A.N. 9485, 14855 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. Rep. No. 412, 93rd Cong., 1 Sess. (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S. Rep. No. 96-151 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Page

PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 1
INTRODUCTION
On May 6, 1997, Defendants (National Marine Fisheries Service, or NMFS) listed only select
members of the population of southern Oregon/northern California (SONC) coho salmon. 62 Fed.
Reg. 24,588. NMFS listed only the “naturally spawned” coho of the population, and left unlisted the
hatchery spawned members of the population. The Plaintiffs (Granges) challenge this listing because
NMFS illegally distinguished “naturally spawned” coho from hatchery coho, all members of the
admittedly same coho species and the same exact population. NMFS distinguished between
“naturally spawned” and hatchery coho because it deemed hatchery coho were not “essential for
recovery.” Id. at 24,608.
On September 12, 2001, this Court invalidated and set aside NMFS’s Oregon Coast coho
listing, a listing virtually identical to the SONC coho listing, based on NMFS’s illegal distinction
between “naturally spawned” and hatchery salmon. Alsea Valley Alliance v. Evans, 161 F. Supp. 2d
1154 (D. Or. 2001). The Court ruled the Endangered Species Act (ESA) does not allow NMFS to
distinguish between members of the same species population by listing only some fish but excluding
other fish of the same species in the same river.
According to this Court’s Alsea decision, “naturally spawned” coho, distinguished from
hatchery coho in the same population, do not represent a separate species, subspecies, or distinct
population segment of a species which the ESA mandates to qualify for listing. Alsea, 161 F. Supp.
2d at 1162. Instead, distinguishing hatchery coho from “naturally spawned” coho creates an artificial
species definition, violating the ESA and contradicting Congress’s intent.
No factual dispute exists regarding NMFS’s failures. Thus, the Granges respectfully request
that this Court grant summary judgment in their favor and find, as a matter of law, that NMFS’s
SONC listing violates the ESA and must be set aside.

1 NMFS published a “Policy on Applying the Definition of Species Under the Endangered Species
Act to Pacific Salmon.” 56 Fed. Reg. 58,612 (Nov. 20, 1991). Under this policy, NMFS considers
a stock of Pacific salmon a distinct population segment (DPS) if it represents an “evolutionarily
significant unit (ESU)” of a biological species. A stock must meet two criteria to be considered an
ESU: (1) be substantially reproductively isolated from other conspecific population units; and (2)
represent an important component in the evolutionary legacy of the species. Id. at 58,618.
In addition, NMFS published an “Interim Policy on Artificial Propagation of Pacific Salmon
Under the Endangered Species Act.” 58 Fed. Reg. 17,573 (Apr. 5, 1993). The interim policy states
that evaluation of a species’ status for listing or delisting under the ESA depends on natural
populations, which for Pacific salmon it defines as “naturally reproducing fish.” Id. The interim
policy also states that “natural fish” are the focus of evaluations to determine whether a population
represents an ESU of the biological species and, thus, can be considered as a species under the ESA.
Id.
2 Because the ESA’s express terms focus on the ecosystems of threatened and endangered species,
rather than just “species,” Congress clearly contemplated that species first be listed under the ESA
and then their ecosystems be conserved. 16 U.S.C. § 1531(b). NMFS, however, employs the ESA
as a type of land use statute under which it may set aside land for a species regardless of whether it
otherwise justifies listing as endangered or threatened. In other words, by utilizing the ESA to list
a species in order to conserve the species’ habitat, NMFS relies on a mere purpose statement to
greatly expand its authority beyond what Congress intended. See Solid Waste Agency of Northern
Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 172 (2001) (“Where an
administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a
clear indication that Congress intended that result.”).
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 2
BACKGROUND
A. NMFS’s SONC Coho Designation and Listing Process
According to the ESA, NMFS may list a species only as a species, a subspecies, or a distinct
population segment of a species. 16 U.S.C. § 1532(16) (“The term ‘species’ includes any subspecies
. . . and any distinct population segment of any species.”). 1 Congress stated the ESA’s purpose is
to provide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, [and] to provide a program for the
conservation of such endangered species and threatened species.
16 U.S.C. § 1531(b) (emphases added). 2 However, NMFS redefines the ESA’s purpose as one
related to conservation biology, seeking to conserve the genetic diversity of species and the
ecosystems they inhabit without regard to whether a species is actually threatened or endangered
under the ESA. On this basis, NMFS created and listed the SONC coho population.

NMFS established the SONC coho population for ESA listing purposes on July 25, 1995.
60 Fed. Reg. 38,011. The SONC coho population is composed of coho salmon from coastal
drainages between Cape Blanco, Oregon, and Punta Gorda, California. Id. at 38,016. NMFS
included in the population both “naturally spawned” and hatchery coho. However, NMFS evaluated
only the “naturally spawned” coho subset of the DPS in order to determine whether the listing was
warranted, and then listed only the “naturally spawned” coho subset as a threatened species under the
ESA. 62 Fed. Reg. 24,588. NMFS excluded hatchery coho from the listing because it did not deem
hatchery coho “essential for recovery.” Id. at 24,608.
Accordingly, NMFS listed SONC coho as neither a species, subspecies, or distinct population
segment of a species. Instead, despite the ESA’s express requirements, NMFS distinguished between
“naturally spawned” and hatchery coho in its listing—despite the existence of hatchery coho in the
same distinct population segment. Thus, NMFS violated the ESA’s species definition by
distinguishing for listing purposes between members of the same species. Alsea, 161 F. Supp. 2d at
1162. Because the listing violates the ESA’s express terms and Congress’s intent, the Granges
brought this case, seeking to ensure NMFS employs the ESA for its intended purpose—protecting
those species truly threatened with extinction.
NMFS is faced with an abundance of SONC coho, but nonetheless listed a subset of the
SONC coho population under the ESA—“naturally spawned” coho. To accomplish its listing, NMFS
treated differently those coho spawned in hatcheries before being released to nature. The distinction
is meaningless under the ESA as well as in practical terms. Hatchery coho have been produced in
streams from “natural” brood stock for well over a century. Very soon after they begin their lives,
young hatchery coho are released where they join young “naturally spawned” coho in the same
streams. See 62 Fed. Reg. at 24,588. Then, both hatchery and “naturally spawned” coho migrate
to the ocean, and spend their lives together at sea for two to three years. Id. Those hatchery and
“naturally spawned” coho that avoid predators and fishermen return to the same original streams to
spawn. Id. Nonetheless, NMFS treats them as different species under the ESA.
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 3

B. The Alsea Decision
On September 12, 2001, this Court ruled that for ESA listing purposes, NMFS may not
distinguish between hatchery coho and “naturally spawned” coho designated by NMFS as part of the
same population. Alsea, 161 F. Supp. 2d at 1161-63. The Court invalidated and set aside the
Oregon Coast coho listing. Id. at 1163-64. Pursuant to the Alsea decision, “naturally spawned”
coho, distinguished from hatchery coho present in the same rivers, do not represent a separate
“species,” “subspecies,” or “distinct population segment of a species.” Thus, treating hatchery coho
differently from “naturally spawned” coho resulted in an inconsistent and artificial species definition
neither found in the ESA nor authorized by Congress.
This Court found, based on NMFS’s own scientific and factual record, that
Hatchery spawned coho are likely not “substantially reproductively isolated” from
naturally spawned coho because, once released from the hatchery, it is undisputed that
“hatchery spawned coho” and “naturally spawned coho” within the Oregon Coast
[population] share the same rivers, habitat, and seasonal runs. . . . In addition,
hatchery spawned and natural coho are the same species, and interbreed when mature.
Alsea, 161 F. Supp. 2d at 1162-63. Accordingly,
[t]he central problem with the NMFS listing decision of August 10, 1998, is that it
makes improper distinctions, below that of a [distinct population segment of a
species], by excluding hatchery coho populations from listing protection even though
they are determined to be part of the same [distinct population segment of the species]
as natural coho populations.
Id. at 1162. In essence,
Id. at 1163.
the NMFS listing decision creates the unusual circumstance of two genetically
identical coho salmon swimming side-by-side in the same stream, but only one
receives ESA protection while the other does not. The distinction is arbitrary.
NMFS agreed with the Court’s decision, deciding not to appeal. NMFS instead proceeded
to revise its hatchery policy, and review 26 separate salmon and steelhead listings in which NMFS
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 4

included hatchery fish within the distinct population segment and, as in Alsea, excluded them from
the actual listing. The SONC coho DPS listing challenged here is one of those 26 listings. 3
C. Appeal of the Alsea Decision
Despite NMFS’s decision to reevaluate its hatchery policy and salmon listings, Defendant-
Intervenors filed on November 9, 2001, a notice of appeal concerning this Court’s Alsea decision.
On June 8, 2002, this Court stayed the instant case pending resolution of the Alsea appeal. On
February 24, 2002, the Ninth Circuit dismissed the appeal for lack of jurisdiction. Alsea Valley
Alliance v. Department of Commerce, 358 F.3d 1181 (9th Cir. 2004). The Ninth Circuit held it
lacked jurisdiction to review both this Court’s order remanding the final rule listing the Oregon Coast
coho salmon population under the ESA and the order setting aside the listing. The Ninth Circuit also
dissolved the stay of this Court’s Alsea decision which it had imposed pending appeal. Subsequently,
on March 17, 2004, the appellants filed a Petition for Rehearing with a Suggestion for Rehearing En
Banc, but the Ninth Circuit denied the petition on June 7, 2004. Once the Ninth Circuit resolved the
appeal, this Court granted on August 26, 2004, the Granges’ motion to lift the stay in this case that
the Court had previously imposed.
3 NMFS’s administrative review is entering its fourth year. NMFS did recently publish in the Federal
Register a draft of its new proposed hatchery policy (69 Fed. Reg. 31,354, 31,354-04 (June 3,
2004)), and a proposal to relist every one of the 26 populations based on its new hatchery policy, in
addition to adding another population for listing. (69 Fed. Reg. 33,102, 33,102-79 (June 14, 2004)).
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 5
JURISDICTION
On November 15, 2001, the Granges sent a 60-day notice of intent to sue to the Secretary
of Commerce, the Director of NMFS, and the Regional Director of the Northwest Region of NMFS,
alleging violations of the ESA and the Administrative Procedure Act (APA), 5 U.S.C. § 706. Section
11(g) of the ESA, the citizen suit provision, requires that citizens intending to file suit against the
Secretary or other parties alleging ESA violations file such notices to enable the Secretary to remedy
any potential violations within that 60-day time period. The Secretary failed to do so.

PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 6
SUMMARY OF THE ARGUMENT
The only real issue before this Court concerning the merits of NMFS’s illegal listing is
whether the ESA allows NMFS to treat differently members of the same species included in a distinct
population segment. The answer to that question is “no,” as both Congress and this Court have
settled the issue.
Congress has already placed in the ESA a strict limitation on actions taken pursuant to the
ESA—NMFS may list only a species, subspecies, or distinct population segment of a species. The
key to resolving this case consistent with Congress’s mandate is the fact that hatchery and “naturally
spawned” SONC coho are the same species and NMFS included hatchery SONC coho along with
“naturally spawned” coho in the same SONC coho population. Because hatchery and “naturally
spawned” SONC coho are the same species and NMFS included hatchery and “naturally spawned”
SONC coho in the same distinct population segment, the ESA demands NMFS list either all members
or no members of the population. In other words, NMFS may not list only the “naturally spawned”
members of the SONC coho population for protection under the ESA.
This Court need not analyze the alleged scientific justification for discriminating between
hatchery and “naturally spawned” SONC coho because factual arguments about the putative
differences between them are irrelevant to this case. Given the ESA’s clear terms and Congress’s
intent, reevaluating the scientific merits of genetic and behavioral studies is improper to resolve this
case. Rather than get bogged down in the maze of irrelevant genetic data and biological studies, this
Court should stay focused on the ESA’s clear terms and Congress’s intent and rule, again, that
“[l]isting distinctions below that of subspecies or a DPS of a species are not allowed under the ESA.”
Alsea, 161 F. Supp. 2d at 1162.
In Alsea, this Court has already ruled that the identical type of listing at issue here violates the
ESA. In that case, the Court set aside the unlawful listing of only a part of the Oregon Coast coho
DPS because NMFS distinguished between hatchery and “naturally spawned” coho. Id. at 1162.
NMFS has done the same thing regarding the SONC coho listing. As it did with the Oregon Coast

coho listing, this Court should enforce the ESA as written by Congress and, accordingly, invalidate
and set aside NMFS’s illegal SONC coho listing.
Finally, because the listing is illegal, as NMFS concedes it is, the people of the States of
Oregon and California should not be fined, jailed, and made to suffer violations of constitutional
rights for otherwise lawful activities while NMFS attempts to comply with the law in its efforts to
relist the species—for NMFS may never “get it right.” Congress has spoken, the law is written, and
the ESA is clear. This Court should likewise hold NMFS responsible for complying with the law and
set aside the illegal SONC coho listing. The Court should not leave the listing in place and allow
NMFS to enforce under civil and criminal penalties a regulation that itself violates federal law. At
the very least, the Court should enjoin NMFS from enforcing the unlawful listing.
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 7
ARGUMENT
I
STANDARD OF REVIEW
The APA, 5 U.S.C. § 706, governs judicial review of administrative decisions made under the
ESA. Pyramid Lake Paiute Tribe of Indians v. United States Department of the Navy, 898 F.2d
1410, 1414 (9th Cir. 1990). Under the APA, the reviewing court must “satisfy itself that agency
decisions are not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law.’ ” Id. (citing 5 U.S.C. § 706(2)(A)). “An agency’s decision is arbitrary and capricious if it:
has relied on factors which Congress had not intended it to consider. . . .” Oregon Natural Resources
Council v. Daley, 6 F. Supp. 2d 1139, 1145 (D. Or. 1998). Although courts will usually consider
seriously an agency’s interpretation of a statute, courts will set aside that interpretation if it “appears
from the statute or its legislative history that the accommodation is not one that Congress would have
sanctioned.” Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 845 (1984)
(citation omitted); see also Federal Election Commission v. Democratic Senatorial Campaign
Committee, 454 U.S. 27, 32 (1981) (Courts “must reject administrative constructions of the statute

. . . that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought
to implement.”).
2 The ESA does not focus on “natural populations.” Not only did Congress define “species” clearly,
but nowhere did Congress mention “natural populations,” “naturally spawned species,” “naturally
occurring species,” “native species,” or “indigenous species.” The Court should be mindful that the
ESA protects “species,” as noted by the fact Congress called the Act the “Endangered Species Act,”
without further subdividing “species” as it well could have, instead calling the Act the “Endangered
Natural Populations Act.” Furthermore, neither does Congress’s “species” definition, nor the entire
ESA itself, distinguish between species members by addressing what percentage of a species’ life
cycle, if any, must be spent in natural habitat before it is considered a member of the species. Indeed,
because hatchery SONC coho live, swim, and survive in the same streams and ocean, the same
natural habitat, as “naturally spawned” coho, no dispute can exist that they depend on the same
“natural ecosystems.”
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 8
II
NMFS’s SONC COHO LISTING IS UNLAWFUL UNDER
THE ESA BECAUSE IT ILLEGALLY DIFFERENTIATES
BETWEEN “NATURALLY SPAWNED” AND HATCHERY COHO
This is a very straightforward case. The ESA allows NMFS to list distinct population
segments of species. No party disputes that fact. What the ESA, and this Court, do not allow is
exactly what NMFS did in this case—NMFS may not list only a fraction of a distinct population
segment. Under the ESA’s clear terms, NMFS must treat equally, without distinction, all members
of a species it includes in a population. That is the focus of this case.
A. Both the ESA’s Clear Language and Congressional Intent Allow
NMFS to List Only Whole Species in a Distinct Population Segment
The ESA is very clear:
The term “species” [only] includes any subspecies of fish or wildlife or plants, and any
distinct population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.
16 U.S.C. § 1532(16). 2 Rather than allow NMFS to protect only preferred members of a species,
the ESA mandates upon NMFS the duty to preserve, protect, and recover each member of a listed
species. In this case, NMFS listed only “naturally spawned” SONC coho, despite also including
hatchery coho in the SONC population. Thus, NMFS listed only a fraction of the SONC coho

population, or a subset of the DPS, directly contradicting the ESA’s express language. The ESA
does not permit the listing of anything less than a “distinct population segment.”
Congress added the term “distinct population segment of a species” by amendment to the ESA
in 1978. In doing so, Congress did not define the term in the ESA. Southwest Center for Biological
Diversity v. Babbitt, 980 F. Supp. 1080 (D. Ariz. 1997). However, congressional history revealed
what Congress meant by the term “distinct population segment of a species” and how Congress
intended that NMFS use the concept.
Indeed, congressional history unequivocally demonstrates Congress did not intend the ESA
to allow NMFS bureaucrats to wade into a river and pick and choose SONC coho, listing some but
not others in the same river when they are all the same species and, as defined by NMFS, the same
DPS of the species. Indeed, if the ESA allowed listings of only portions of the same species in such
geographic proximity, federal agencies could list a spotted owl in one nest but not a spotted owl in
another nest—in the same old growth tree. See Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir.
2001) (courts should construe statutes consistent with statutory purposes to avoid absurd results).
No serious argument can be made that Congress intended such lunacy.
In fact, Congress considered, and explicitly rejected, such misuse of the ESA when addressing
a request made by the wildlife agencies. Senate Report No. 96-151 discusses the General Accounting
Office’s (GAO) concern that Congress should revise the term “distinct population segment of a
species” because the term “could result [theoretically] in the listing of squirrels in a specific city park,
even though there is an abundance of squirrels in other parks in the same city, or elsewhere in the
country.” S. Rep. No. 96-151, at 7 (1979). United States Fish and Wildlife Service representatives
responded that the “distinct population segment of a species” language should remain because
otherwise,
Id.
FWS [Fish and Wildlife Service] would be required to provide the same amount of
protection for the bald eagle population in Alaska, which is healthy, as for the bald
eagle population in the coterminous states, which is [different].
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 9

Congress allowed the “distinct population segment of a species” term to remain in the ESA
but explicitly warned the wildlife agencies it was “aware of the great potential for abuse of this
authority and expects the [wildlife agencies] to list populations sparingly.” S. Rep. No. 96-151
(emphases added). Clearly, Congress would not condone NMFS’s challenged coho listing in this case
which exemplifies an even more spurious application of a “distinct population segment of a species”
than the GAO feared in its park squirrel hypothetical. Accordingly, this Court should not allow
NMFS to proceed in a manner Congress has already admonished it not to.
The above legislative history demonstrates Congress provided the “distinct population
segment of a species” language in order to afford NMFS flexibility in managing geographically
isolated populations—as requested specifically by the wildlife agencies. Moreover, even earlier
legislative history reinforces the same point. For example, Congress originally defined “species” in
the 1973 version of the ESA to include “any subspecies of fish or wildlife of the same species or
smaller taxa in common spatial arrangement that interbreed when mature.” Endangered Species Act
of 1973. However, Congress amended the ESA in 1978 by changing the definition of “species” so
that it “would exclude taxonomic categories below subspecies [smaller taxa] from the definition as
well as distinct populations of invertebrates.” H. Conf. Rep. No. 95-1804, at 17 (1978), reprinted
in 1978 U.S.C.C.A.N. 9485, 14855. In doing so, Congress made explicitly clear that the term
“distinct population segment of a species” added in the amendment applies only to “species,” not to
“smaller taxa.” Thus, despite sparse language concerning genetics in the original 1973 version of the
ESA, five years later, Congress actually eliminated NMFS’s ability to list only portions of a species
by dividing a species based on alleged minute genetic distinctions.
The Ninth Circuit heeds Congress’ instruction in the ESA’s legislative history. For example,
the Ninth Circuit has recognized that, although Congress eliminated NMFS’s ability to list portions
of species based on genetics, Congress preserved the ability to list species according to geographical
range. See Defenders of Wildlife v. Norton, 258 F.3d 1136, 1144-45 (9th Cir. 2001). For example:
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 10

The historical application of the Act is consistent with this interpretation of the statute
. . . . Grizzly bears, for example, are listed as threatened species within the
contiguous 48 states, but not in Alaska. Similarly, only the California, Oregon and
Washington populations of the marbled murrelet, whose range in North America
extends from the Aleutian Archipelago in Alaska to Central California, are listed as
threatened.
Id. at 1145. The Ninth Circuit cited Senator Tunney for an explanation of why Congress placed such
importance upon geographical distinctions within the ESA:
An animal might be “endangered” in most States but overpopulated in some. In a
State in which a species is overpopulated, the Secretary would have the discretion to
list that animal as merely threatened or to remove it from the endangered species
listing entirely while still providing protection in areas where it was threatened with
extinction.
Id. at 1144 (quoting H.R. Rep. No. 412, 93rd Cong., 1 Sess. (1973)).
In addition, the Ninth Circuit relied on Congress’s intent behind the term “distinct population
segment” by citing examples of how wildlife agencies properly employ the concept: American
alligators listed in Florida but thriving in Louisiana; grizzly bears listed in the lower 48 states, but not
in Alaska; marbled murrelets listed in California, Oregon, and Washington, but not in Alaska; desert
bighorn sheep listed in Southern California, but not the Baja Peninsula; stellar sea lions listed as
endangered in one location, but only threatened in others. Id. at 1144-45.
In Defenders of Wildlife, the Ninth Circuit relied on the ESA’s clear terms and congressional
intent to hold that the Fish and Wildlife Service erred in listing only a portion of a California
gnatcatcher population based on distinctions in land ownership within a species’ geographical range.
Id. at 1146-47. Given the holding in that case, certainly this Court should invalidate NMFS’s attempt
to list only a portion of SONC coho swimming in the same streams.
This congressional intent and case law establish that Congress actually retained the “distinct
population segment of a species” language to enable NMFS to afford ESA protection to a
geographically isolated population of a species in danger of extinction without requiring NMFS to
expend resources protecting another geographically separate, thriving population of the same species.
Id. Thus, by adding the term “distinct population segment of a species,” Congress intended to
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 11

provide NMFS with the requested flexibility to manage different geographic species populations
differently according to the threats those populations faced. NMFS’s listing here is illegal because
it violates Congress’s intent and abuses the authority Congress provided NMFS in the ESA.
Accordingly, this Court should invalidate and set aside the illegal listing. Immigration and
Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987) (the judiciary is the final
authority on issues of statutory construction). “If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the precise question at issue, that intention
is the law and must be given effect.” Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 (9th Cir.
1994). “Thus, when Congress’s intent is clear, the courts, not the agency, are charged with the basic
responsibility for statutory interpretation.” Id. “A contrary agency interpretation is entitled to no
deference.” Id.
B. NMFS Violated the ESA by Treating Hatchery SONC Coho
and “Naturally Spawned” Coho Differently Under the ESA
Quite simply, hatchery SONC coho and “naturally spawned” coho are, and NMFS considers
them to be, the same species. See 62 Fed. Reg. 24,588. On that basis alone, no justification exists
for treating them differently under the ESA. Indeed, NMFS included five of seven hatchery coho
stocks as part of the SONC coho population. Id. at 24,608. Because hatchery coho are the same
species as “naturally spawned” coho, NMFS had no choice under the ESA but to treat them equally
without distinction.
Yet, NMFS distinguished between hatchery coho and “naturally spawned” coho because it
does not consider hatchery coho “essential to recovery” of the SONC coho population. 62 Fed. Reg.
at 24,608. But Congress did not include an “essential to recovery” listing criterion in the ESA.
Nowhere in the ESA, the ESA’s legislative history, Congress’s species definition, or Congress’s
addition of the term “distinct population segment of a species,” did Congress include language
allowing NMFS to pick and choose between members of the same species based on whether NMFS
considers them “essential to recovery.”
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 12

In a final ironic twist, NMFS considers the progeny of hatchery coho that spawn naturally as
“naturally spawned” coho under the ESA. 58 Fed. Reg. at 17,573. This, of course, leads to the
legally untenable and irrational practice in which NMFS treats differently hatchery spawned coho, yet,
if hatchery coho spawn naturally, NMFS provides those progeny the ESA’s full protection. 62 Fed.
Reg. at 24,608; 58 Fed. Reg. at 17,573.
The only relevant inquiry under the ESA is whether hatchery coho within the SONC coho
population are the same species as “naturally spawned” coho in the SONC coho population. Because
NMFS admits hatchery coho are the same species as the “naturally spawned” coho, the ESA
mandates that NMFS treat them equally without distinction in the listing process. Because NMFS
failed to do so in its SONC coho listing, the Court should invalidate and set aside the illegal listing.
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 13
III
THIS COURT RELIED PROPERLY ON THE ESA
AND THE ESA’S LEGISLATIVE HISTORY TO INVALIDATE
NMFS’s IDENTICAL OREGON COAST COHO LISTING
Adhering to the legal tenets noted above, this Court invalidated and set aside the Oregon
Coast coho listing in a virtually identical case. See Alsea, 161 F. Supp. 2d 1154. This Court found
NMFS’s listing decision
creates the unusual circumstance of two genetically identical coho salmon swimming
side-by-side in the same stream, but only one receives ESA protection while the other
does not.
Id. at 1163. According to this Court, NMFS went a step too far:
The central problem with the NMFS listing decision . . . is that it makes improper
distinctions, below that of [a distinct population segment of a species], by excluding
hatchery coho populations from listing protection even though they are determined
to be part of the same [distinct population segment] as natural coho populations.
Id. at 1162. Thus, this Court found
Id. at 1163.
the NMFS’s listing decision is arbitrary and capricious, because the Oregon Coast
[coho listing] included both “hatchery spawned” and “natural spawned” coho salmon,
but the agency’s listing decision arbitrarily excludes “hatchery spawned” coho.
Consequently, the listing decision is unlawful.

This Court based its decision solely on NMFS’s record, finding it need not consider scientific
issues regarding whether hatchery coho harm “naturally spawned” coho. Instead, the Court relied
on NMFS’s own findings—based on its own rules, definitions, and fact-finding—that hatchery and
“naturally spawned” coho are the same species. On that basis, the Court reached the decision that
under the ESA’s express terms and legislative history, NMFS must treat hatchery coho and “naturally
spawned” coho in the same population equally under the ESA. Id. at 1163. Accordingly, the court
ruled that
Id. at 1162.
[o]nce NMFS determined that hatchery spawned coho and naturally spawned coho
were part of the same [distinct population segment], the listing decision should have
been made without further distinctions between members of the same [distinct
population segment].
In Alsea, this Court issued a clear, thoughtful, and legally sound opinion based on the ESA
as written and Congress’s intent as expressed in the ESA’s legislative history. This Court did not
allow its judgment to be improperly influenced by any debate surrounding distinctions between
hatchery coho and “naturally spawned” coho. This Court merely ruled that, because NMFS included
hatchery coho in the distinct population segment, NMFS must treat hatchery coho and “naturally
spawned” coho equally, without distinction, in the listing process. Because NMFS failed to do so,
the Court had no choice under the ESA but to invalidate and set aside the listing. Likewise, NMFS’s
SONC coho listing is illegal for the same reason—NMFS distinguished between hatchery and
“naturally spawned” members of the same coho species swimming side-by-side in the same streams.
Thus, this Court, following its own reasoning, should also invalidate and set aside the illegal SONC
coho DPS listing.
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 14

PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 15
IV
THIS COURT SHOULD SET ASIDE THE ILLEGAL SONC
COHO LISTING BECAUSE THE APPROPRIATE REMEDY FOR
AN UNLAWFUL AGENCY RULE IS TO SET THE RULE ASIDE
A. NMFS’s Ongoing Administrative Review Does Not Serve as a
Valid Basis for Keeping NMFS’s Current Illegal Rule in Place
NMFS has noted it has issued a proposed draft hatchery policy and proposed listings as the
result of its administrative review enacted pursuant to this Court’s decision in Alsea. Federal
Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Lift Stay (Opp. to Lift Stay) at 1,
dated August 6, 2004. Although the Granges contend the new draft policy and proposed relistings
do not comply with this Court’s Alsea decision, nor with the ESA, those issues are not relevant to
this case. Regardless of the legality of NMFS’s new administrative actions, they are merely in their
draft stages and may not become final as proposed for many, many months, if at all.
NMFS first announced the review would be complete by September, 2002, and that proposed
listings would result within 45 days thereafter. See United States Department of Commerce News
Release, dated Nov. 9, 2001, at 2 (attached as Exhibit A); Hatchery Salmon ESA Listing Review
Action Plan (attached as Exhibit B). NMFS missed that deadline. Instead, NMFS announced a new
schedule in which it would complete the review in October, 2002, and issue a final rule by April,
2003. Updated Schedule for New Hatchery Listing Policy and Pacific Salmon & Steelhead Status
Review Updates at 2 (attached as Exhibit C). The new schedule alleged NMFS would then publish
proposed listings by June, 2003. Id. NMFS missed that deadline. Well after it missed the previous
deadline, NMFS instead released a new schedule on August 19, 2003, by which it contended it would
complete the review and issue proposed rules by March, 2004. Update on Status Review Schedule
(attached as Exhibit D). NMFS then indicated it would issue final listings one year later. Id. NMFS
missed that deadline.
Most recently, NMFS published, in June, 2004, a proposed hatchery policy and proposed
listings. 69 Fed. Reg. 31,354; 69 Fed. Reg. 33,102. This time, rather than set yet another date by

which it hopes it would finalize the hatchery policy and listings, NMFS instead noted only that it is
required to publish final rules within one year of the proposed rules, and that it expects final listings
to be in place within one year. Opp. to Lift Stay at 2. Moreover, NMFS noted properly that “the
proposals are undergoing public comment and further agency review” and that NMFS “cannot predict
at this time the ultimate contents of the final policy and rule.” Id.
Finally, as a result of the controversial nature of the proposed regulations, NMFS has already
been presented with a request to separate the public comment periods concerning the proposed
hatchery policy and the proposed listings, which would push any final resolution well beyond June,
2005. See Exhibit E, National Association of Home Builders’ Request for Extension. Moreover,
NMFS has already extended the comment period twice. See Exhibit F, NOAA Fisheries
Announcement, dated August 23, 2004, and http://www.nwr.noaa.gov/AlseaResponse/20040528/
index.html. Clearly, as the last three years have demonstrated, NMFS may—or may not—complete
the process at the end of the next 12 months.
B. Under the APA, Congress Left the Court with No
Choice Other Than to Set Aside NMFS’s Unlawful Rule
The APA mandates the Court to set aside unlawful rules because a regulation not
promulgated in accordance with the law may not be afforded the force and effect of law. Chrysler
Corp. v. Brown, 441 U.S. 281, 313 (1979). This long-standing legal tenet is based on the clear,
mandatory language of the APA.
The APA provides in relevant part:
[T]he reviewing court shall . . .
to be
(2) hold unlawful and set aside agency action, findings, and conclusions found
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.
5 U.S.C. § 706(2)(A) (emphases added). The United States Supreme Court has made clear: “shall”
means shall. United States v. Monsanto, 491 U.S. 600, 607 (1989) (stating that by using the word
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 16

“shall,” “Congress could not have chosen stronger words to express its intent”). As does the
Supreme Court, circuit courts recognize that Congress’s use of the commandment “shall” does not
mean “maybe,” “perhaps,” or “if the district court so decides.” Leslie Salt Co. v. United States,
55 F.3d 1388, 1397 (9th Cir. 1995) (“If Congress had intended . . . discretion[], it would have used
the word ‘may’ instead of ‘shall.’ ”).
No case holds explicitly that the ESA trumps Congress’s APA command. Conversely,
Congress’s use of the word “shall” imposes a mandatory duty in applying Section 706(2)(A) to
regulations adopted under the ESA. See Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th
Cir. 1999). As does NMFS in this case, in Forest Guardians, the Secretary of the Interior sought to
maintain in effect an illegal rule promulgated under the ESA, even though the court had determined
the rule was unlawful. However, the Tenth Circuit refused to grant the Secretary’s improper request:
Id. 3
Unpersuaded by the clear language of § 706 and the weight of authority
interpreting the imperative nature of “shall,” the Secretary . . . urges this court to use
its equitable discretion to permit his continued non-compliance with the ESA, citing
several Supreme Court opinions that hold that even in the face of a government
statutory violation, the power to grant or deny injunctive relief rests in the sound
discretion of the court. . . .
While the Supreme Court has made clear that courts should not lightly infer
Congress’ intent to curtail the courts’ traditional equitable power to exercise
discretion in the granting of injunctive relief, the Court has likewise made clear
Congress’ power to curb the courts’ discretion by clear expression. . . . Through §
706 Congress has stated unequivocally that courts must compel agency action
unlawfully withheld or unreasonably delayed.
3 Although the Tenth Circuit reviewed the court’s authority under Section 706(1), pertaining to
agency actions unlawfully withheld or delayed, the analysis is pertinent to this case because the “shall”
provision applies equally to both subsections (1) and (2).
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 17

When Congress provided in Section 706 that the reviewing court “shall . . . set aside”
regulations it finds are not in accordance with law, Congress made that duty mandatory on the Court.
In the context of this case, “shall” means this Court has no choice but to set aside NMFS’s illegal
listing because NMFS failed to promulgate it in accordance with the ESA’s requirements. Leslie Salt
Co., 55 F.3d at 1397 (“[A]s a matter of statutory interpretation, a longstanding canon holds that the
word ‘shall’ standing by itself is a word of command rather than guidance when the statutory purpose
is the protection of public or private rights.”). The Court has no discretion in the matter. Congress’s
use of the word “shall” unequivocally eliminated any choice other than setting aside the illegal listing.
C. Even Under a Rule for Exceptions Created by Some Courts, the
Proper Remedy for the Unlawful SONC Coho Listing Is to Set It Aside
According to the Ninth Circuit Court of Appeals, preserving an invalid rule pending remedial
efforts is the exception, not the rule. Alsea Valley Alliance v. Department of Commerce, 358 F.3d
at 1185-86. Indeed, courts leave in place unlawfully promulgated rules only in “unusual
circumstances.” Western Oil & Gas Association v. Environmental Protection Agency, 633 F.2d 803,
813 (9th Cir. 1980) (invalid regulation left in place “[u]nder the unusual circumstances of the case”);
see also United States Steel Corp. v. Environmental Protection Agency, 595 F.2d 207, 215 (5th Cir.
1979) (agency error must be “one that clearly had no bearing on the procedure used or the substance
of the decision reached”). Thus, despite Congress’s APA command, some courts have allowed
invalid regulations to remain in place only where the defect resulted from a mere procedural violation.
See, e.g., Endangered Species Committee of the Building Industry Association of Southern
California v. Babbitt, 852 F. Supp. 32, 41 (D.D.C. 1994) (rule may remain in place while agency
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 18

provides the “proper procedural remedy”) (emphasis added); Idaho Farm Bureau Federation v.
Babbitt, 58 F.3d 1392, 1406 (9th Cir. 1995) (“[E]quitable concerns weigh toward leaving the listing
rule in place while FWS remedies its procedural error.”) (emphasis added).
In contrast, the United States Supreme Court has stated that “[a]dministrative decisions
should be set aside . . . for substantial procedural or substantive reasons.” Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978) (emphasis added).
Such substantive reasons exist in listings such as NMFS’s unlawful SONC listing, which is why this
Court set aside the unlawful Oregon Coast coho listing, why the Ninth Circuit reinstated that portion
of this Court’s ruling, and why this Court should set aside the unlawful SONC listing.
Although some courts have occasionally left in place an invalid rule due to mere procedural
defects, courts routinely set aside rules containing substantive defects. For example, where the error
is substantive and results in illegal agency action, as is the case here, courts set aside the invalidated
rule. Fertilizer Institute v. Environmental Protection Agency, 935 F.2d 1303, 1310 (D.C. Cir. 1991)
(setting aside an invalid rule because it substantively violated the underlying statute); accord
Endangered Species Committee, 852 F. Supp. at 41 n.4 (leaving invalid rule in place only because
“there has been no substantive challenge to the Secretary’s decision”).
For example, in Idaho Farm Bureau v. Babbitt, 58 F.3d 1392, the Ninth Circuit held that
failure to accept public comment constituted procedural error, so it allowed the government to
remedy the procedural error without setting aside the unlawful rule. Id. at 1406. This case,
however, does not involve a mere, easily corrected, procedural error. Indeed, NMFS itself
recognized that the illegal listing’s substantive problem was such that it must promulgate an entirely
new rule. Because NMFS cannot correct the illegal SONC coho listing merely through procedural
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 19

modifications, but instead must draft a new rule after conducting a full administrative process
complete with notice and comment proceedings, this Court should set aside the illegal listing.
Likewise, in Western Oil & Gas, the plaintiff challenging the designation requested that the
court leave the designation in place during remand and substitute any new designation when the
procedural deficiency was cured. Western Oil & Gas, 633 F.2d at 812. The mere procedural
deficiency was the significant reason the court concluded that vacating the designation would
“thwart[] in an unnecessary way the operation of the Clean Air Act.” Id. at 813. Yet, despite the
mere procedural violation, the court stated: “Whether to leave the challenged designation in effect
during reenactment of the deliberative process is a difficult question.” Id. “Ordinarily a failure to
comply [even] with the APA requirements of prior notice and comment would invalidate such
designations” and only “the unusual circumstances” of the case compelled it to do otherwise. Id.
Here, of course, the question is not so difficult: the substantial substantive defects inherent in the
illegal SONC coho listing mandates setting it aside.
Similarly, in International Union, United Mine Workers of America v. Federal Mine Safety
and Health Administration, 920 F.2d 960, 966-67 (D.C. Cir. 1990), the court left in place an
unlawful administrative rule on remand only because it doubted the seriousness of the rule’s
deficiencies. The court stated:
As the record affords us no basis for concluding that the deficiencies of the order will
prove substantively fatal, we remand the case but do not vacate.
Id. at 967. The court explained:
Relevant to the choice are the seriousness of the order’s deficiencies (and thus the
extent of doubt whether the agency chose correctly) and the disruptive consequences
of an interim change that may itself be changed.
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 20

Id. There was no need to be equivocal in this case, however. No doubt should exist that the
challenged chinook rules are substantively deficient and unlawful.
Finally, the court in Endangered Species Committee found only a mere procedural error that
the government represented to the court it was rectifying. Endangered Species Committee, 852 F.
Supp. at 41 (“[I]n unusual circumstances, ‘an unlawfully promulgated regulation can be left in place
while an agency provides the proper procedural remedy.’ ”) (quoting Fertilizer Institute, 935 F.2d
at 1312) (emphases added). The court kept the rule in place, emphasizing that, again in contrast to
this case, “there has been no substantive challenge to the Secretary’s decision to list the [coastal
California Gnatcatcher].” Id. at 41 n.4.
D. Even If the Court Chooses to “Balance the Equities,”
It Should Nonetheless Set Aside the Illegal SONC
Coho Listing Absent Substantial, Actual Evidence That
the Coho Would Suffer Significant, Foreseeable Harm
Although the APA does not authorize such action, the Granges recognize that some courts
take the liberty of balancing the equities prior to setting aside an illegal ESA listing where the listing
suffers from a procedural flaw. Compare Alsea Valley Alliance, 358 F.3d 1181 (reinstating a district
court order setting aside a substantively defective listing where neither the district court nor the Ninth
Circuit balanced the equities), and Idaho Farm Bureau Federation, 58 F.3d 1392 (balancing the
equities to keep in place a procedurally invalid listing so the Service could correct a public notice and
comment violation). The Granges maintain that, under Congress’s mandate, the substantive illegality
of the SONC coho listing forecloses this Court’s discretion to balance the equities in this case.
However, the Granges also contend that even if the Court does balance the equities, it should still set
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 21

aside the admittedly illegal SONC coho listing absent substantial, actual evidence of significant,
foreseeable harm.
Other courts that have chosen to balance the equities after finding a rule procedurally
defective did not do so unless the wildlife agency met its initial burden of providing sufficient
evidence of significant harm to the species absent the rule. If the wildlife agency failed to prove the
required high level of harm, those courts nonetheless set aside the illegal rules. See National
Association of Home Builders (NAHB) v. Norton, No. 00-CV-903, 2001 WL 1876349, at *3 (D.
Ariz. Sept. 21, 2001) (analyzing whether significant harm was likely to occur: “The Defendants have
not presented the Court with any evidence suggesting that significant harm to the species is likely to
occur.”). See also Building Industry Legal Defense Foundation v. Norton, 231 F. Supp. 2d 100, 105
(D.D.C. 2002) (analyzing the likelihood of significant disruptive consequences).
Even in cases in which courts do actually find sufficient evidence of harm, only one found the
equitable balance to actually favor the species—only because numerous large development projects
were approved to take place within critical habitat. Natural Resources Defense Council (NRDC) v.
United States Department of Interior, 275 F. Supp. 2d 1136, 1149-53 (C.D. Cal. 2002) (denying
Service’s motion to vacate illegal critical habitat designation). The court relied on actual and
substantial evidence of foreseeable and significant harm that would befall two species if the court
set aside the illegal rules. The court declined to vacate the California gnatcatcher critical habitat
designation based on existing plans for two large development projects on existing critical
habitat—one a four lane toll road through the center of a large portion of critical habitat, the other
a housing and urban development in another large section of habitat. Id. at 1139-40. The court also
relied on evidence of 26 other development applications, one involving 570 residential units on a 445-
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 22

acre site within the critical habitat. Id. at 1150 n.29. These development projects and applications
indicated to the court that “significant real development of [critical] habitat is currently planned.” Id.
at 1150.
As for the other species, the court declined to vacate the fairy shrimp critical habitat
designation for the same reason. First, members of both the National Association of Home Builders
and the Building Industry Association of Southern California not only owned property within the
critical habitat, but both entities also had plans to develop the property. Id. at 1151. The court also
found a significant threat existed to remaining habitat from any development whatsoever, and that
further habitat destruction threatened the fairy shrimp with extinction. Id. at 1151-52.
Even were it to balance the equities, the harm present in NRDC is an example of the harm this
Court should require before leaving the unlawful SONC coho listing in place. In other cases lacking
that magnitude of harm, courts have instead set aside the unlawful rules. Without evidence sufficient
to prove the necessary high threshold level of harm sufficient to allow this Court to balance the
equities, ample precedent directs that the Court set aside NMFS’s illegal SONC coho listing.
E. Leaving the Illegal SONC Coho Listing In Place, Despite
Congress’s APA Mandate, Will Impose Significant Hardship
and Serious Harm on the Granges and Their Members
Such substantial, actual evidence of significant, foreseeable harm as that present in
NRDC—even if it did actually exist in this case—would nonetheless not outweigh the harm the
Granges and their members face from the illegal listing. 4 The Granges and their members have
4 Of course, any evidence of harm NMFS might produce must be viewed skeptically given that its
conclusions relate only to the species members it listed—“naturally spawned” coho—which, of
course, is an illegal practice not allowed by the ESA. See 62 Fed. Reg. at 24,588 (final rule listing
SONC coho based on evaluation of “naturally spawned” coho); see also 69 Fed. Reg. 33,102, 33,110
(continued...)
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 23

suffered, and will continue to suffer, from unlawful government actions as long as the illegal rule
currently in effect, stays in effect. See, e.g., Declaration of Dick Carleton in Support of Motion to
Lift Stay (Carleton Decl.), and Declaration of David J. Victorine in Support of Motion to Lift Stay
(Victorine Decl.); see also Complaint for Declaratory and Injunctive Relief 14-16. The Granges’
declarations indicate that severe repercussions, many still existing today, resulted from the farmers’
water being shut off in 2001 as a consequence of the illegal listing. See, e.g., Carleton Decl. 5-9.
As long as the illegal listing remains in place, the Granges remain subject to continuing harm. Indeed,
as recently as June, 2003, the Bureau of Reclamation threatened to cease water deliveries in the
middle of the growing season in order to meet ESA requirements under the current biological opinion
which exists due to the illegal listing. Carleton Decl. 5.
NMFS’s administrative review is entering its fourth year, while a way of life for thousands
of people is destroyed little by little every day. Indeed, NMFS’s continued enforcement of the illegal
listing during the review has wreaked tremendous hardships. Absent action by the Court, NMFS’s
illegal listing will remain in effect, enforceable against the Granges and their members. Indeed, NMFS
is required to enforce the illegal listing as long as it is in place. In addition to NMFS enforcing the
illegal listing, however, private parties can also continue to bring citizen suits based on the illegal
listing to stop private productive use of land. See, e.g., Pacific Coast Federation of Fishermen’s
4 (...continued)
(proposed SONC coho relisting based on the viability and extinction risk of solely naturally spawning
populations). An evaluation including all members of the species would likely appear far different.
For example, approximately 60 percent of the coho in the Rogue River were hatchery coho in 1996.
62 Fed. Reg. at 24,591. Clearly, NMFS can not invent dire predictions without ignoring 60 percent
of the population.
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 24

Associations v. United States Bureau of Reclamation, Civ. No. C-02-02006 SBA, (N.D. Cal. 2002).
Such conduct has been and would continue to be highly detrimental to the Granges.
For example, as a result of the Service’s enforcement of the listing, farmers have been unable
to make definite plans each spring because of the uncertainty of water deliveries. Victorine Decl.
11. Another growing season is soon approaching and if the listing remains in place, the harm that has
existed throughout NMFS’s “review” will continue. Clearly, certainty concerning water availability
is critical to the farming industry. Indeed, without water, a farm cannot exist. For example, due to
requirements imposed by the illegal listing, banks have not loaned farmers the money necessary to
obtain essential supplies and materials such as seed and fertilizer. Id. 10-11; Carleton Decl. 7.
This financial circumstance perpetuates the damage NMFS’s listing has already caused, because it
prevents farmers from operating to recover losses from the previous water restrictions. Without
necessary capital, farmers cannot recover from the effects of fields that have dried up and from being
forced to sell portions of their cattle herds. Victorine Decl. 7. They cannot replenish exhausted
family savings. Carleton Decl. 9. Indeed, they cannot continue an American way of life that has
existed, in many cases, since the beginning of the last century. Carleton Decl. 4, 7, 10; Victorine
Decl. 4, 13.
PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 25

PLNT MEMO IN SUP MOT
FOR SUMMARY JUDGMENT - Page 26
CONCLUSION
The Court should grant Plaintiffs’ motion for summary judgment and, as required by the APA,
invalidate and set aside NMFS’s unlawful listing.
DATED: October 15, 2004.
Respectfully submitted,
JOHN M. GROEN
Groen Stephens & Klinge, LLP
ROBIN L. RIVETT
RUSSELL C. BROOKS
By /s/ Russell C. Brooks
RUSSELL C. BROOKS
Attorneys for Plaintiffs