Govt. reply memo re: remedy

KARIN J. IMMERGUT, OSB #96314
United States Attorney
JIM SUTHERLAND, OSB # 68160
Assistant United States Attorney
THOMAS L. SANSONETTI
Assistant Attorney General
JEAN WILLIAMS
Section Chief
SETH M. BARSKY
Assistant Chief
RUTH ANN LOWERY
Ruth.lowery@usdoj.gov
Trial Attorney
Wildlife & Marine Resources Section
U.S. Department of Justice
Environment & Natural Resources Division
Benjamin Franklin Station, P.O. Box 7369
Washington, D.C. 20044-7369
(202) 305-0210 (ph)
(202) 305-0275 (fax)
Attorneys for Federal Defendants
CALIFORNIA STATE GRANGE, et al.,
v.
Plaintiffs,
DONALD L. EVANS, et al.,
and
Defendants,
WATERWATCH OF OREGON, et al.,
and
YUROK TRIBE,
Defendant-Intervenors,
Defendant-Intervenor.
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON (Eugene)
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No. 02-6044-HO
FEDERAL DEFENDANTS’
REPLY MEMORANDUM
REGARDING REMEDY

TABLE OF CONTENTS
I. OVERVIEW ........................................................ - 1 -
II. PLAINTIFFS’ ARGUMENTS IGNORE BOTH CONTROLLING AND PERSUASIVE
LAW. .............................................................. - 2 -
A. Plaintiffs’ Reading of the APA to Require Setting Aside Flawed Rules Without
Exception Is Not the Law. ........................................ - 2 -
1. The Western Oil and Gas and Idaho Farm Bureau Decisions Recognize an
Exception to the Default Remedy That Is Based in Courts’ Inherent Equitable
Authority and Is Not Limited to Procedural Errors. .............. - 3 -
2. The Equitable Considerations Underlying These Decisions Are At Their
Most Pronounced in Cases Involving the ESA. .................. - 6 -
3. The Court’s Equitable Discretion Extends To The Timing of The Order, Not
Just The Decision Whether to Vacate. ........................ - 7 -
4. Vacatur is Not the Only Or Essential Remedy Available to Plaintiffs.
....................................................... - 8 -
5. The APA Expressly Directs That Vacatur Is Not Required Where an Error
is “Harmless.” ........................................... - 9 -
B. Federal Defendants Have Shown, On the Basis of Direct Application of Ninth Circuit
Precedent As Well As More Recent District Court Decisions Decided in the ESA
Context, That The Court Should Leave the Listing in Place. ............ - 10 -
C. Federal Defendants Have Carried Their Burden to Demonstrate Risk of Significant
Harm to the Species. Plaintiffs Have Failed to Overcome That Showing. . - 12 -
1. Federal Defendants’ Showing of Harm Does Not Depend on “Speculation”
About What Will Happen With the Proposed Listing. ........... - 12 -
2. Plaintiffs Have Still Failed to Put Forward Evidence Demonstrating Present,
Redressable Harm. ....................................... - 14 -
3. Plaintiffs’ Attacks on Mr. Lecky’s Testimony Must Fail. ......... - 15 -
III. THERE IS NO NEED OR BASIS TO IMPOSE A DEADLINE FOR COMPLETION OF
THE ONGOING ADMINISTRATIVE PROCESS. ......................... - 18 -
IV. CONCLUSION ..................................................... - 19 -
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - i -

I. OVERVIEW
Federal Defendants, National Marine Fisheries Service (“NMFS” or “NOAA Fisheries”),
et al., file this Reply in further support of our Motion to Leave ESA Listing in Place During Remand
(Nov. 12, 2004) (Docket No. 87) 1/ to address the other Parties’ arguments regarding the appropriate
remedy in this case.
Plaintiffs do not, and can not, dispute that the Ninth Circuit has held that a rule declared
invalid may be left in place under “unusual circumstances” and “when equity demands.” Western
Oil and Gas Ass’n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980); Idaho Farm Bureau Fed’n v. Babbitt,
58 F.3d 1392 (9th Cir. 1995). Here, the requisite unusual circumstances are present in abundance
and strongly support the equitable remedy of leaving the rule in place for now. First, the expert
agency has already voluntarily undertaken a thorough review of the challenged listing, addressing
the precise errors asserted by plaintiffs with regard to the original listing decision. 2/ NMFS has again
concluded that, based on the best available scientific information, the Southern Oregon Northern
California Coast (“SONCC”) coho continue to be in need of the protections afforded by the
Endangered Species Act (“ESA”). NMFS has published a proposed rule to continue the listing, 3/
and, barring unexpected developments or new information arising during the public comment period,
this decision is likely to become final within six months.
Second, Federal Defendants’ previously submitted Lecky Declaration shows that removing
ESA protections in the interim not only will create additional risk to an imperiled species, but that
it also would be disruptive to federal agencies, and applicants for federal permits, who will be caught
short if the species is re-listed. If ever there were a case where the court should use its equitable
1/ See Federal Defendants’ Memorandum in Support of Motion to Leave ESA Listing in Place and in Response
to Plaintiffs’ Motion for Summary Judgment (Nov. 12, 2004) (Docket No. 90)(“Fed. Defs’ Memo.”); Errata
(Dec. 8, 2004) (Docket No. 104) (substituting new page 19 to Fed. Defs’ Memo.) (responding to Pls’
Response at 14 n. 19); Federal Defendants’ Response to Plaintiffs’ Statement of Material Facts (Nov. 12,
2004) (Docket No. 88). (Unlike the Defendant-Intervenors, Federal Defendants did not seek summary
judgment on the merits. Thus, we did not file a separate Concise Statement of Material Facts but rather
responded to Plaintiffs’ Statement.) See also Declaration of James H. Lecky (Nov. 12, 2004) (Docket No.
89) (“Lecky Dec.”).
2/ 62 Fed. Reg. 24,588, 24,608 (May 6, 1997) (A.R. 1).
3/ 69 Fed. Reg. 33,102 (June 14, 2004) (submitted in full as Attachment C to Docket No. 67).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 1 -

discretion to leave a rule in place while an agency completes a remand process, this is it.
In their Response, 4/ Plaintiffs posit an overly rigid interpretation of the APA that ignores the
well-reasoned decisions of the Ninth Circuit, as well as other courts that have applied the precedents
of the Ninth Circuit to the specific question at issue here. They even go so far as to brand those
decisions with which they disagree as “rogue decisions,” Pls’ Response at 14. Despite the rejection
by several district courts of their argument, Plaintiffs continue to press for re-interpretation of the
decisions of the Ninth Circuit to rest on a supposed distinction, between substantive flaws and
procedural flaws, that can be found nowhere on the face of the decisions. Plaintiffs’ attempts to
demonstrate harm to their interests rest on exaggerations and speculative, attenuated assertions of
harm that likely would not be redressed by vacatur of the SONCC coho listing in any event. They
have presented nothing to correct the fatal weakness in their argument that setting aside the listing
is necessary to ensure “certainty.” Instead, they advance arguments that reflect an incomplete or
flawed understanding of the ESA and other programs, and resort to unfounded attacks on the
credibility of Federal Defendants’ Declarant.
Finally, while Defendant-Intervenors WaterWatch of Oregon et al. agree with Federal
Defendants that the listing should be left in place, they have suggested that the Court could impose
a deadline for NMFS to complete the ongoing, post-Alsea listing process in an attempt to satisfy
Plaintiffs. 5/ As we noted in our earlier filing in response to the Defendant-Intervenors’ Motion, 6/ there
is no need or grounds for such a deadline.
II. PLAINTIFFS’ ARGUMENTS IGNORE BOTH CONTROLLING AND PERSUASIVE
LAW.
A. Plaintiffs’ Reading of the APA to Require Setting Aside Flawed Rules Without
Exception Is Not the Law.
Attempting to circumvent the decisions of the Ninth Circuit (and numerous other courts) that
4/ See Plaintiffs’ Response to Defendants’ and Defendant-Intervenors’ Motions for Summary Judgment (Dec.
3, 2004) (Docket No. 100) (“Pls’ Response”).
5/ See Memorandum in Support of Defendant-Intervenors WaterWatch et al.’s Motion for Summary Judgment
(Nov. 15, 2004) (Docket No. 94) (“Def-Ints’ Memo.”).
6/ See Federal Defendants’ Response to Defendant-Intervenors’ Motion for Summary Judgment (Dec. 02,
2004) (Docket No. 99).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 2 -

have declined to set aside certain agency actions despite their flaws, Plaintiffs first argue that
Congress has mandated exclusively and without exception that the remedy where any flaw is found
is to set aside (vacate) the action. See Pls’ Response at 4-8. Plaintiffs argue that because of the
APA’s use of the term “shall” in Section 706, in connection with the language “hold unlawful and
set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), a court faced with a rule
containing a flaw of any type must in every case set aside the rule without any consideration of the
equities or exercise of discretion. 7/ Plaintiffs then argue in the alternative that the Ninth Circuit has
recognized only a limited exception that applies exclusively where the error at issue is procedural.
Further, they argue that vacatur is necessary to provide any meaningful remedy. Each of Plaintiffs’
arguments is untenable, as we explain below.
1. The Western Oil and Gas and Idaho Farm Bureau Decisions Recognize
an Exception to the Default Remedy That Is Based in Courts’ Inherent
Equitable Authority and Is Not Limited to Procedural Errors.
Plaintiffs’ argument that vacatur is required under APA Section 706 is flatly contradicted
by Ninth Circuit precedent. The court in Western Oil and Gas was “guided by authorities that
recognize that a reviewing court has discretion to shape an equitable remedy. . . .” 633 F.2d at 813
(collecting cases). See also Ford Motor Co. v. NLRB, 305 U.S. 364, 373(1939) (“ While the court
must act within the bounds of the statute and without intruding upon the administrative province,
it may adjust its relief to the exigencies of the case in accordance with the equitable principles
governing judicial action.”); Indiana & Michigan Elec. Co. v. Federal Power Commission, 502 F.2d
336, 346 (D.C. Cir. 1974) (a court “sitting in review of an administrative agency is vested with
7/ Plaintiffs attempt to elevate their “legal maxim of statutory interpretation” to the status of controlling law,
and dispute NMFS’ assertion (in our opening brief) that the Ninth Circuit has repeatedly declined to accord
the APA’s “shall set aside” language the status of an unequivocal command. Pls’ Resp. at 5 n.11. However,
Plaintiffs fail to explain how their interpretation of the alleged statutory command can be reconciled with the
cases they discuss and attempt to distinguish in Section II.A. of their brief. See Idaho Farm Bureau, 58 F.3d
at 1400 (interpreting “shall” in a provision of the ESA flexibly, 16 U.S.C. § 1533(b)(6)) (“Although the
statutory term ‘shall’ suggests that the limits are mandatory, failure of an agency to act within a statutory time
frame does not bar subsequent agency action absent a specific indication that Congress intended the time
frame to serve as a bar.”).
Indeed, the appearance of the term “shall” in connection with other parts of this section of the APA
suggests Plaintiffs place too much emphasis on its occurrence. See 5 U.S.C. § 706 (“the reviewing court shall
decide all relevant questions of law”) (emphasis added); id. (“the court shall review the whole record or those
parts of it cited by a party”) (emphasis added); id. (“due account shall be taken of the rule of prejudicial
error”) (emphasis added).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 3 -

equity powers which it may employ in a manner defined by the Supreme Court in [Ford Motor
Co.]”).
In Idaho Farm Bureau, the court was evaluating several alleged procedural deficiencies in
an ESA listing regulation. 8/ The court found that the “harmless error” doctrine (a separate exception
which we discuss in Section II.A.5, infra) applied to one of the alleged deficiencies, but not to
another. Specifically, the court concluded that the Fish and Wildlife Service’s failure to provide
notice of the new ESA listing to the plaintiff county as required by the ESA (see 16 U.S.C. §
1533(b)(5)(A)(ii)), was harmless error because the record revealed that the county commissioners
had availed themselves of the opportunity to provide testimony at least at some of the hearings. See
58 F.3d at 1405. However, in contrast, the court concluded that the failure to provide an opportunity
for notice and comment regarding a critically important scientific study to the public as required
pursuant to the APA, (5 U.S.C. § 553(b) and (c)), constituted a “significant” procedural error (not
harmless error). Id. After concluding it could not apply the harmless error exception to that
“significant” error, the court then proceeded to look to the broader, equity-based test applied in
Western Oil and Gas to determine that it could leave the flawed listing rule in place. Id. (citing both
Western Oil and Gas and Fertilizer Institute v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991) (leaving
rule in place while notice and comment undertaken, in view of potential hindrance to EPA’s
authority to respond to environmental hazards posed by vacatur)). The court thus concluded, “when
equity demands, the regulation can be left in place while the agency follows the necessary
procedures.” Id. (emphasis added). 9/
Plaintiffs have pointed to no case from the Ninth Circuit overruling or calling into question
the Western Oil and Gas or Idaho Farm Bureau cases, and thus those cases recognizing an equity-
based exception to the APA’s default remedy of setting aside flawed rules still represent good law. 10/
8/ The Court discusses the various procedural requirements examined in the case at 58 F.3d 1401-02.
9/ Plaintiffs’ statement that the court in Modesto Irrigation District v. Evans, No. Civ-F-02-6553 (E.D. Cal.
April 12, 2004) (Attachment 1 to Fed. Defs’ Memo.) was attempting to “explain” the reach of the Ninth
Circuit’s exception as recognized in Idaho Farm Bureau when it recited the “general rule” for harmless error
(as presented in County of Del Norte) therefore appears to be a mis-interpretation of both the Idaho Farm
Bureau decision and the Modesto Irrigation District discussion. See Pls’ Response at 15.
10/ The Ninth Circuit cases discussed at Pages 5-6 of Plaintiffs’ brief in no way purported to call the Western
(continued...)
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 4 -

Plaintiffs cite cases in which the Ninth Circuit, at most, has generally acknowledged the language
of 5 U.S.C. § 706, or stated (without detailed analysis) that Section 706 instructs courts to hold
unlawful and set aside certain rules, 11/ or suggest in passing that courts must set aside actions that
are arbitrary and capricious. 12/ Nevertheless, in the recent opinion regarding the cross-appeals from
the Alsea decision, the Ninth Circuit re-confirmed that the ordinary rule presuming vacatur is “not
without exception.” Alsea Valley Alliance v. Evans, 358 F.3d 1181, 1185 (9th Cir. 2004).
10/ (...continued)
Oil and Gas or Idaho Farm Bureau cases into question. Further, the Anderson v. Evans decision, 350 F.3d
815, 843-44 (9th Cir. 2003), amended and superseded, 37 F.3d 475 (9th Cir. 2004) is not apropos of the case
at bar, because the agency action at issue there (the “gray whale quota”) would have allowed tribal hunting
of gray whales; it was not an action (such as an ESA listing) that afforded protection to a species. See also
note 12, infra, and accompanying text (discussing NAHB). Finally, Plaintiffs’ citations to Supreme Court
cases not involving the ESA, or any other environmental statute, are simply not on point. See, e.g., Pls’
Response at 6 (citing Federal Election Commission v. Akins, 524 U.S. 11, 25 (1998); Securities and
Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 94 (1943)).
11/ Bonnichsen v. United States, 357 F.3d 962, 972-73, amended and superseded, 367 F.3d 864, 875 (9th Cir.
2004).
Plaintiffs nevertheless suggest that the Ninth Circuit’s decisions in Western Oil and Gas and
Idaho Farm Bureau, and their progeny, represent an illegitimate, “unauthorized” exception to the
APA’s otherwise rigid mandate. Pls’ Response at 6. Plaintiffs even suggest the Ninth Circuit’s
reasoning is vacuous, alleging that “one can always argue that ‘disruptive consequences’ may
occur.” Id. They suggest the formulation unfairly shifts the burden to plaintiffs to prove there will
“never” be any disruptive consequences. Id. Plaintiffs’ hyberbolic protests are unpersuasive; their
arguments fail to address what should happen where disruptive consequences are likely. Indeed,
Plaintiffs include no discussion of the goals of environmental statutes in their discussion of the
“policy concerns” upon which they urge the Court to rewrite or disregard Ninth Circuit precedents.
See Pls’ Response at 6-8. Rather, they present an academic argument that vacatur is an essential
check and balance on agency power, a position they attempt to ascribe to the Ninth Circuit. 13/ They
12/ National Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003). In National Association
of Home Builders, although the court did cite the general remedy of 5 U.S.C. Section 706, it did not order
the species listing at issue there set aside. In fact, on remand, the lower court decided to leave the listing in
place. See Attachment 4 to Fed. Defs’ Memo. and discussion at Fed. Defs’ Memo. 18-19.
13/ Plaintiffs cite Western Oil and Gas to support its assertion that the “congressionally-mandated remedy of
(continued...)
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 5 -

have provided no basis for the Court to simply disregard Ninth Circuit law.
2. The Equitable Considerations Underlying These Decisions Are At Their
Most Pronounced in Cases Involving the ESA.
Plaintiffs’ myopic focus on the “shall. . . set aside” language of the APA improperly seeks
to isolate the APA, which provides the jurisdictional basis and standard of review here, from the
equally relevant ESA, which provides the framework and standards for listing and protecting
species. 14/ It is the ESA that must provide the substantive touchstone for any determination that the
1997 listing was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law,” 5 U.S.C. § 706(2)(a). 15/ Thus, the “shall” language of the APA cannot be so inflexibly
interpreted (to always mean “must”) apart from consideration of the larger Congressional goals
underlying the ESA.
Indeed, precedent from the Ninth Circuit has expressly recognized that whether the term
“shall”in a statute should be interpreted as truly mandatory depends in part on whether an inflexible
interpretation will further, as opposed to hinder, Congress’ expressed policy goals. As the court has
noted:
We recognize that the thrust of [ Brock v. Pierce County, 476 U.S. 253, 258-62 & n.
6 (1986)] and [Marshall v. Local Union 1374, Int'l Ass'n of Machinists, 558 F.2d
1354 (9th Cir.1977)] is that "shall " is not always mandatory unless Congress has
specified a consequence. However, as noted above, [those cases] rely heavily on the
fact that depriving the agency of its power to act was a remedy which would thwart
the statutory purpose. Here, by contrast, enforcing the deadline would serve the
statutory purpose. . . .
See Sierra Pacific Industries v. Lyng, 866 F.2d 1099, 1112 (9th Cir. 1989). Thus, “shall” does not
13/ (...continued)
vacatur plays an essential role in Congress’ structure of judicial oversight of agency action.” Pls’ Response
at 7. However, in the quote from the Western Oil and Gas case that follows this sentence in Plaintiffs’ brief,
“[T]his” (in the Ninth Circuit’s statement that “[T]his is a reasonable corollary. . .”) referred not to the remedy
of vacatur (indeed, the court declined to order vacatur in that case), but to the principle that “regulations
subject to the APA cannot be afforded the ‘force and effect of law’ if not promulgated pursuant to the
statutory procedural minimum found in that Act.” 633 F.2d at 812.
14/ Of course, to the extent Plaintiffs might argue that their motion is based in part on a claim under the ESA
citizen-suit provision, 16 U.S.C. § 1540(g) (see Complaint at 39-46 and Attachment (Docket No. 1)), then
the relevance of the purposes of the ESA is even stronger.
15/ Indeed, Plaintiffs’ central argument is that the entity listed in 1997 – the SONCC coho ESU – is not a
properly cognizable “species,” “subspecies” or “distinct population segment” as authorized for listing under
the ESA. See Complaint at 48 (Feb. 5, 2002) (Docket No. 1).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 6 -

always mean “must.” The fact that the overriding Congressional policy here is expressed not in the
APA, but in the ESA which must be read in conjunction therewith, should not alter the analysis. 16/
The Supreme Court has noted that, in enacting the ESA, Congress made a clear and explicit
policy choice to afford endangered and threatened species the highest of priorities. See TVA v. Hill,
437 U.S. 153, 174 (1978) (“[E]xamination of the language, history, and structure of the [ESA]
indicates beyond doubt that Congress intended endangered species to be afforded the highest of
priorities.”). See also United States v. Oakland Cannabis Buyer’s Coop., 532 U.S. 483, 496 (2001)
(noting that, in TVA v. Hill, the grant of an injunction was the only way to preserve the order of
priorities Congress had firmly set in the ESA, which placed concern for species above other
priorities). Plaintiffs’ focus on the allegedly rigid commands of the APA while ignoring the
compelling policy choices and directives of the ESA is, therefore, untenable. 17/
3. The Court’s Equitable Discretion Extends To The Timing of The Order,
Not Just The Decision Whether to Vacate.
Even if the APA were interpreted to always require vacatur of flawed rules (which, for the
reasons discussed above, it has not been), the Court still would not be mechanically obliged to
immediately set the rule aside. The APA does not speak to when any determination to set aside a
final agency action must take effect. Thus, courts retain discretion to delay the effect of their vacatur
rulings, which they may choose to exercise if remand without vacatur is not favored in a particular
16/ As we discussed in our opening brief, Plaintiffs sought to rely on a decision of the Tenth Circuit in Forest
Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999) to buttress their argument that “shall” means “must.”
We pointed out that Plaintiffs had gotten the facts of that case wrong, and we explained how the posture of
that case differed in significant ways from the current case. Fed. Defs’ Memo. at 17 n.27. In their Response,
Plaintiffs attempt to deflect attention from their own misstep by accusing Federal Defendants of “attempting
to mislead the Court” as to the APA’s language. Pls’ Response at 4 n.9. Although a fair reading of Federal
Defendants’ original footnote needs no clarification, Federal Defendants agree that the language of the APA
speaks for itself, including the appearance of the word “shall” in the portion of the statute that applies both
to 5 U.S.C. § 706(1) and 706(2).
17/ Plaintiffs’ attempt to discredit the clear holdings of TVA v. Hill by presenting the “rest of the story,” is
flatly unsuccessful. See Pls’ Response at 12 n.15. The fact that Congress had to pass special legislation to
allow the Tellico Dam to be completed in light of a “jeopardy” biological opinion further demonstrates, rather
than undercuts, the unwavering proscriptions of the ESA as written (and as still in force). Similarly, the
limited amendment to the ESA that was made then (creation of the “Endangered Species Committee, or “God
Squad”), reinforces that only by act of this powerful and very rarely convened committee (or act of Congress)
can a federal agency seek a “pass” on inherent conflicts between proposed federal actions and the obligation
to avoid jeopardy and adverse modification of ESA Section 7(a)(2) ((16 U.S.C. § 1536(a)(2)). Indeed, the
fact that Congress did not more fundamentally amend the provisions of Section 7 of the ESA in response to
TVA v. Hill demonstrates that Congress largely accepted the general balance struck by the Supreme Court’s
interpretation.
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 7 -

case. Hawaii Longline Association v. National Marine Fisheries Service, 288 F. Supp.2d 7, 12 (D.
D.C. 2003) (“[T]he Court is vested with equitable authority to stay the mandate.”) (citations
omitted); id. (“The Court will use its equitable powers to stay the mandate of its prior decision until
April 1, 2004. During this period of time, the regulations amending the Pelagics FMP and the
biological opinion . . . will effectively govern the Fishery's activities. At the conclusion of this
period, however, the stay will be lifted automatically and the regulations and the biological opinion
will be vacated. . . .”); Modesto Irrigation District at 61-62 (Attachment 1 to Fed. Defs’ Memo).
Thus, the option to delay the effective date of any order remains available to the Court even
if it concludes it should vacate the rule, despite Federal Defendants’ and Defendant-Intervenors’
arguments.
4. Vacatur is Not the Only Or Essential Remedy Available to Plaintiffs.
Finally, Plaintiffs’ claim that without setting aside the listing they will have been denied “any
effective remedy,” at Pls’ Response 7, is demonstrably wrong. The Court can provide declaratory
relief pronouncing the approach taken in the 1997 listing as inconsistent with the ESA and
remanding to the agency for further consideration. Indeed, these remedies top the list of the relief
Plaintiffs have sought. See Complaint at 13, Prayer for Relief 1-2 (Feb. 5, 2002) (Docket No.
1).
As Plaintiffs’ acknowledge, at Pls’ Response 18, it was the Court’s declaration in Alsea that
led NMFS to initiate an administrative procedure to comprehensively revisit its West Coast salmonid
listings wholesale (even though that ruling did not require it to do so). Although Plaintiffs do not
like the apparent policy direction of those efforts, they cannot deny that, as a result, NMFS will be
superseding the current, challenged listings with new decisions based on a new and different
analysis. 18/
18/ Plaintiffs posit a strawman argument that “the Opposing Parties advocate on behalf of a rule that would
allow NMFS to, in essence, (1) list a species on any basis, (2) defend any challenge with a biologist’s simple
declaration, (3) repeat as needed.” Pls’ Response at 8. They also suggest that NMFS seeks a “free pass[]”
or “do-over[].” Id.(emphasis added). The voluminous record supporting the original SONCC coho listing,
and the record being visibly and publicly compiled through the post-Alsea administrative process, belie
Plaintiffs’ argument. Moreover, the agency has the valid prerogative to correct a flawed rule through
subsequent rulemaking. See Center for Science in the Public Interest v. Regan, 727 F.2d 1161, 1164 (D.C.
Cir. 1984) (“[I]t is not improper for an agency to engage in new rulemaking to supersede defective
rulemaking.”) (citing Action on Smoking and Health v. CAB, 713 F.2d 795, 798-99, 802 (D.C.Cir.1983)).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 8 -

Further, in light of the lack of demonstrable concrete harm to Plaintiffs from the listing, the
remedy of vacatur would be overbroad. 19/
5. The APA Expressly Directs That Vacatur Is Not Required Where an
Error is “Harmless.”
Finally, the text of the APA itself refutes Plaintiffs’ argument that “Congress Clearly
Intended Courts to Set Aside Unlawful Agency Rules and Did Not Provide an Exception in the
APA.” Pls’ Response at 4 (heading I.A.). Specifically, the last clause in § 706 (appearing after §
706(2)(E)) states:
In making the foregoing determinations, the court shall review the whole record or
those parts of it cited by a party, and due account shall be taken of the rule of
prejudicial error.”
5 U.S.C. § 706(2)(emphasis added). The Ninth Circuit has applied the “prejudicial error,” or
“harmless error,” doctrine often. See, e.g., Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th
Cir. 1992) (cited in Idaho Farm Bureau at 58 F.3d at 1405); County of Del Norte v. United States,
732 F.2d 1462, 1467 (9th Cir. 1984) (analogizing to the “trivial error” provision of certain
regulations promulgated under the National Environmental Policy Act to the “harmless error” test
under 5 USC § 706). 20/
The Ninth Circuit applies the harmless error test in the administrative rulemaking context
very cautiously, and the contours of the test vary with the circumstances. Depending on the type
of action and error at issue, the court sometimes requires plaintiffs to demonstrate harm to
themselves. As the court recently explained:
In reviewing agency action, the APA requires that "due account shall be taken of the
rule of prejudicial error ." 5 U.S.C.A. § 706. We have applied a harmless error rule
to agency action differently, depending on both the types of action and error at issue.
In the rulemaking context, we "exercise great caution in applying the harmless error
rule," holding that "failure to provide notice and comment is harmless only where the
agency's mistake clearly had no bearing on the procedure used or the substance of
decision reached." Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th
19/ If, in the future, Plaintiffs are able to demonstrate more concrete harm, more tailored relief would be
available at that time. Cf Modesto Irrigation District at 61-64 (Attachment 1 to Fed. Defs’ Memo) (tailoring
remedy and retaining jurisdiction to consider threats of irreparable injury).
20/ Plaintiffs cite County of Del Norte but mistakenly conflate the statement of the harmless error doctrine with
the different, and broader, equity-based exception applied in Western Oil and Gas and Idaho Farm Bureau.
See Pls’ Response at 10. Although the two doctrines may overlap to some degree, they are distinct. See
Section II.A.5, infra. In any event, Plaintiffs are flatly incorrect in their assertion that “[n]othing in the APA
indicates such an exception [as was discussed in County of Del Norte] is permitted.” Pls’ Resp. at 10.
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 9 -

Cir.1992). . . . In other contexts, however, our review for harmless error is more
demanding of plaintiffs. Where the agency's error consisted of a failure to comply
with regulations in a timely fashion, we have required plaintiffs to identify the
prejudice they have suffered. Thus, when plaintiffs have "failed to identify any
prejudice from the delay, no [judicial] action is warranted." Hall v. U.S. EPA, 273
F.3d 1146, 1163-64 (9th Cir.2001); see also Kolek v. Engen, 869 F.2d 1281, 1286
(9th Cir.1989) (discussing application of harmless error rule to procedural mistakes).
City of Sausalito v. O'Neill, 386 F.3d 1186, 1220 (9th Cir. 2004) (some citations omitted) (denying
remedy under APA to plaintiffs who could show no harm to themselves as a result of temporary
agency delay).
Generally, in the context of agency review, the doctrine is available only “‘when a mistake
of the administrative body is one that clearly had no bearing on the procedure used or the substance
of decision reached.’” Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1071 (9th Cir. 2004)
(emphasis in original) (quoting Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir.1982)
(declining to apply harmless error rule where biological opinion appeared to be based on invalid
regulation)).
As in Gifford Pinchot, the listing determination here was based on an agency interpretation
( a hatchery listing policy) that was later found to be invalid. Unlike in Gifford Pinchot, however,
there is clear evidence before the Court (the proposed re-listing rule) to indicate that the outcome
of the 1997 listing was not necessarily tainted by application of that policy. Thus, the error was
arguably “harmless.” However, Federal Defendants have not relied directly on this doctrine in
seeking to leave the listing in place. 21/
B. Federal Defendants Have Shown, On the Basis of Direct Application of Ninth
Circuit Precedent As Well As More Recent District Court Decisions Decided in
the ESA Context, That The Court Should Leave the Listing in Place.
Plaintiffs also argue that Federal Defendants have drawn the Court’s attention to the wrong
case law, suggesting that we have attempted to impermissibly substitute a multi-factor test recently
applied in a district court for what Plaintiffs contend is the more narrow test of the Ninth Circuit.
21/ As we noted in our opening brief, the “harmless error” doctrine may provide an additional,
independent basis for leaving the SONCC coho listing in place during remand. Fed. Defs’ Memo. at 16 n.22.
See also Consolidated Gas Supply Corp. v. FERC, 606 F.2d 323, 328-29 (D.C. Cir. 1979) (taking note of
APA’s command that due account be taken of “prejudicial error” and noting that “The appropriate standard
is to remand for correction of an error only when there is substantial doubt that the administrative agency
would have reached the result it did absent reference to the material.”) (citations omitted).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 10 -

See Pls’ Response at 12 (accusing Federal Defendants of “[a]ttempting to avoid the Ninth Circuit’s
reasoning”). As we discuss below, Plaintiffs’ arguments ignore significant portions of Federal
Defendants’ opening brief and, more fatally, elevate form over substance.
Only after first citing the Western Oil and Gas and Idaho Farm Bureau cases and noting that
the present case presents the kind of “unusual circumstances” recognized by the Ninth Circuit did
Federal Defendants move on to a discussion of the several district court decisions that have left
rules in place on analogous facts. See Fed Defs’ Memo. at 17-20. Because Plaintiffs have not found
a sympathetic ear on those courts to their “substance versus procedure” theory (the courts have
instead pointed out that nothing in the holding of either Western Oil and Gas or Idaho Farm Bureau
actually limits the scope of those holdings to procedural errors), Plaintiffs seek to dismiss them
summarily as “rogue decisions,” Pls’ Response at 14. They even suggest there is “no good reason”
to look beyond the Western Oil and Gas or Idaho Farm Bureau decisions. See Pls’ Response at 13
n.17. The suggestion that this Court may not or should not avail itself of the accumulated experience
and reasoning of the number of courts in this Circuit to have been faced with the very question that
faces this Court is unhelpful and disdainful of other courts. This Court should not have to reinvent
the wheel, just because those decisions are not “binding.”
Whether the Court looks only to the “two-part” formulation Plaintiffs present from Western
Oil and Gas (see Pls’ Response at 8), or to the lengthier formulation presented in the Modesto
Irrigation District case, the result should be the same. We have soundly demonstrated that there are
“unusual circumstances” here such that setting aside the listing at this time will (1) “thwart in an
unnecessary way the operation of the ESA” by removing protection at a critical time from a species
that in the agency’s currently expressed judgment (in the proposed rule) continues to warrant
protection, and that this will (2) lead to “undesirable consequences” (as detailed in the Lecky
Declaration and the Federal Defendants’ opening memorandum).
Further, the risk of harm to the species at issue is consistent with the standard contemplated
in the Idaho Farm Bureau case. The court there noted that “concern exists regarding the potential
extinction of an animal species.” 58 F.3d at 1405. Although there were facts before the court to
suggest that the extinction could be rather soon in time if the listing were set aside, it did not
condition the holding on a particular timeframe. Here, although the SONCC coho was listed as
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 11 -

“threatened” (not “endangered”), there is still a risk of extinction. After all, a “threatened” species
is one that is “likely to become an endangered species within the foreseeable future.” 16 U.S.C. §
1532(20). Further, Congress authorized the listing of “threatened” species precisely in order to
provide protection before species reach the critical threshold of being “endangered.” As the Lecky
Declaration addresses, if the current protections that flow from listing are lifted, irreversible
consequences could occur within the species’ range in the form of the weakening or loss of habitat
protections. Thus, Plaintiffs’ suggestion that the fish can be disregarded as “merely” threatened, Pls’
Response at 12, is not appropriate. Further, the court in Idaho Farm Bureau also noted concern that
spending on federal conservation programs not be rendered wasted by removing the listing. 58 F.3d
at 1405-06. The programs discussed in the Lecky Declaration represent similar public investments
and should not be undercut.
Finally, Plaintiffs’ suggestions that the formulations applied by the other district courts are
inconsistent with the Ninth Circuit standard in large part elevates form over substance. The number
of factors a Court chooses to evaluate should not be given talismanic significance. Many of the
Modesto Irrigation District test prongs simply express various aspects of the central inquiries at issue
under the Ninth Circuit precedents, or the precedents of the influential D.C. Circuit (such as
International Union, United Mine Workers of America v. FMSHA, 920 F.2d 960, 966-67 (D.C. Cir.
1990)). See Fed. Defs’ Memo. at 20-22; Errata at Attachment A. Indeed, the Ninth Circuit quite
often references decisions of the D.C. Circuit for guidance in dealing with administrative review
cases. See, e.g., Western Oil and Gas, 633 F.2d at 813 (citing D.C. Circuit cases regarding courts’
inherent equity authority); Riverbend, 958 F.2d at 1487 n.7 (noting that D.C. Circuit “handles
administrative cases with numbing regularity”).
C. Federal Defendants Have Carried Their Burden to Demonstrate Risk of
Significant Harm to the Species. Plaintiffs Have Failed to Overcome That
Showing.
1. Federal Defendants’ Showing of Harm Does Not Depend on
“Speculation” About What Will Happen With the Proposed Listing.
Plaintiffs erroneously suggest that Federal Defendants’ showing of harm is somehow
dependent on predictions or “speculation” about whether the recent proposal to list the SONCC coho
will become final. See Pls’ Response at 2. This distorts Federal Defendants’ position. The very
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 12 -

existence of the proposed rule is significant in at least two ways. 22/
First, the proposal demonstrates that NMFS has revisited the original listing, reconsidering
the very issues Plaintiffs raise here, and yet come nevertheless to the conclusion that the species
likely still warrants protection under the ESA. Even if the final form of the rule is different – and
even if NMFS ultimately decides not to list the ESU, the proposal demonstrates that the original
listing might have been the same even if the original error in the treatment of hatchery fish had not
occurred. Thus, the central outcome of the rule may essentially be the same. This factor should be
given weight here. See International Union, United Mine Workers of America, 920 F.2d at
967(relevant to the choice to vacate or not 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.” (emphasis added). Cf Consolidated Gas, 606 F.2d at
328-29. 23/
Second, the fact that the proposal to re-list is in the form of an actual proposed rule (not a
less formal document) suggests that there is a considerable chance that the species will be re-listed,
and that delisting at this time threatens to interrupt the scheme of protection set out under the ESA.
The Court has before it far more than just a declaration or some speculation about what the future
listing status of the species is likely to be. The proposed rule, although subject to change, represents
the expert agency’s best, considered judgment on the basis of the best currently available scientific
and commercial information. Because the ESA mandates an approach of institutionalized caution,
22/ Nor have we suggested that a listing is “eventually inevitable in some form.” Pls’ Response at 2. It would
be improper to attempt to prejudge the outcome of an ongoing rulemaking process.
23/ The two cases cited by Plaintiffs for their proposition that “the Court is required to set aside the unlawful
rule ‘even though the agency . . . . might later. . . reach the same result. . .” are not on point. See Pls’
Response at 20. Federal Election Commission v. Akins, 524 U.S. 11, 25 (1998), addressed the question
whether standing to challenge an agency action (dismissal of an administrative complaint) could be
established where it was not clear that the error sought to be challenged was outcome-determinative in the
administrative process. It did not involve the question whether a rule had to be set aside under the APA. Nor
did the court in JSG Trading Corp. v. USDA, 176 F.3d 536, 546 (D.C. Cir. 1999) address the issue of whether
to vacate an agency rule. Rather, the court there concluded that the administrative record upon which it was
reviewing the agency action (a permit revocation) lacked a sufficient explanation that could allow the court
to affirm the judicial officer’s order, and thus remanded to the agency for further explanation.
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 13 -

TVA v. Hill, this should be given considerable weight in the Court’s calculus. 24/ Until there is a final
administrative listing determination, the Court should approach the protected status of the species
with caution. Because lost opportunities to protect the species and its habitat now could prove to
have an irreversible effect on the fish, the prudent course is not to increase harm in the interim by
removing the listing protections.
That Plaintiffs happen to disagree with the approach reflected in the proposed rule does not
make the proposal any less real. See Pls’ Response at 3 (referencing Plaintiffs’ recent 60-day notice
raising criticism of NMFS’ proposed approach and asserting NMFS is “on notice” that the approach
is illegal). 25/ Nor is it appropriate to drag this Court prematurely into a consideration or review of
the content of the proposed hatchery listing policy or proposed listing rule, when there is not a new
final agency action yet, much less any claims challenging it.
2. Plaintiffs Have Still Failed to Put Forward Evidence Demonstrating
Present, Redressable Harm.
Plaintiffs suggest in effect that they live in apprehension of “threats of civil and criminal
punishment,” Pls’ Response at 1, although they have not alleged, much less provided any specific
facts to support, that any of the named Plaintiffs (or their members) have been threatened with
anything of the kind. In the latest version of their argument, they even assert some unspecified harm
to “schools, municipalities, counties, and the States of Oregon and California.” Pls’ Response at 3.
Even assuming any such entities are suffering harm stemming from the listing (which they have not
come forward to claim ), Plaintiffs lack standing to raise claims on behalf of entities not Parties to
this suit. Plaintiffs’ rhetorical devices cannot substitute for actual evidence of cognizable harm to
themselves.
24/ Plaintiffs’ attempt to rely on the statement by the Court in the Alsea transcript that the Oregon coast coho
appeared “according to some of the material received by the court” to be “thriving,” Pls’ Response at 12, are
not persuasive. There, the expert agency had not made any pronouncements, in a proposed rule or a
declaration, suggesting that the species should remain listed even after consideration of the Court’s holding.
Here, by contrast, the best available information does not suggest to NMFS (the expert agency) that the
species is “thriving.” See Lecky Dec. at 5 (Docket No. 89).
25/ Indeed, the 60-day notice is an invalid attempt to circumvent the ESA citizen-suit’s requirement that notice
of actual, existing violations be given. See, e.g., Moden v. USFWS, 281 F. Supp.2d 1193, 1206(D. Or. 2003)
(“[B]ecause the agency had not acted on the petition at the time of notice, plaintiffs could not have given the
Secretary [60-day] notice of an unlawful action.”). Plaintiffs’ attempts to get on record their policy
disagreements with NMFS on the basis of non-final agency action are thus improper as a matter of law, in
addition to being irrelevant to the matters to be reviewed at this time by this Court.
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 14 -

As to their allegations of harm to Plaintiffs’ members, Plaintiffs have still failed to establish
that the harms they complain of are cognizable, much less that they are redressable. As much as
Plaintiffs may desire and even depend on “certainty” of availability of water, see Pls’ Response at
25-27 (passim) nothing this Court (or weather forecasters) could do could provide such certainty.
Further, as we have noted, it is clear even by Plainiffs’ own declarations that the lack of certainty
of which they primarily complain are not solely the result of the SONCC listing. See Carleton Dec.
2; Victorine Dec. 3. 26/
But even if the SONCC listing were solely to blame for all of Plaintiffs’ economic woes
(instead of a synergistic combination of factors, including the listings of other species and the
occurrence of drought years), setting aside the listing here would not secure certainty, because
SONCC coho are now proposed for re-listing. Until the ongoing administrative process is finalized,
there can be no certainty that they will not be re-listed. And in the meantime, certain limited
protections will be in place that, while having less “teeth” than the ESA Section 7 consultation
process, preclude any “certainty” that no interruptions to water deliveries may arise in the future for
its protection.
3. Plaintiffs’ Attacks on Mr. Lecky’s Testimony Must Fail.
Plaintiffs’ attempts to distort and discredit the Lecky Testimony must fail. A plain reading
of it shows that the Declaration does not simply “outline[] mere administrative inconvenience,” as
Plaintiffs suggest. Pls’ Response at 16. Much of Plaintiffs’ criticisms of the Lecky Declaration
actually stem from an apparent flawed or incomplete understanding on the part of Plaintiffs of many
of the matters addressed in the Declaration. Further, Plaintiffs’ criticisms ignore the Ninth Circuit’s
concern for “the possibility of undesirable consequences which we cannot now predict.” Western
Oil and Gas, 633 F.2d at 812.
First, Plaintiffs mistakenly assume that only private development can pose a threat to a listed
species (based on their citation to a case that left in place a critical habitat designation in view of
26/ Plaintiffs sought in their opening brief to rely on two declarations, and continue to direct the Court to them,
even though Plaintiffs now take the position that the Court “need not, and should not, accept extra-record
evidence in order to determine the appropriate remedy for NMFS’ unlawful rule. . . .” Pls’ Response at 4 n.8.
However, it is beyond serious dispute that, in exercising their equitable discretion to fashion a remedy to
avoid unnecessary harm, courts generally must consider, within reason, extra-record materials.
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 15 -

threats to that habitat from proposed development, see NRDC v. USDOI, 275 F. Supp.2d at 1149-52
(C.D. Cal. 2002) (cited at Pls’ Response 18)). However, as the Lecky Declaration details, risks to
the species may be posed through federal actions taken on federal or non-federal land. Indeed, that
is the basis for the consultation requirement of ESA Section 7(a)(2), 16 U.S.C. § 1536(a)(2). 27/
Plaintiffs also appear to misunderstand the point Mr. Lecky was making about lost time and
delays in consultations if the species’ listing is now set aside only to be relisted. See Pls’ Response
at 18 n.24 (discussing Lecky 6). The harm Mr. Lecky points out is not merely administrative
inconvenience to NMFS, but also setbacks to applicants or permittees seeking federal approvals to
take actions involving a federal nexus. While the obligation to “consult” under ESA Section 7(a)(2)
would cease if the listing is set aside, the obligation will arise again if the new listing is finalized.
Any project not completely implemented at that time would have to start the process again. In the
meantime, as we have explained, an obligation to “confer” under ESA Section 7(a)(4) may arise in
the meantime, if an action is “likely to jeopardize” the species, as a result of its proposed listing
status, but it is not the equivalent of Section 7(a)(2) consultation. 28/
Plaintiffs’ discussion suggesting that the rule proposing re-listing actually indicates that the
fish are doing well (at Pls’ Response 20-21) is a wholly improper attempt to have the Court pre-
judge the reasoning of the non-final, proposed rule. The Court should take into account the fact that
NMFS’ review has led the agency to conclude (and to propose) that the species should be re-listed,
but should not review the rule as if it were a final action properly challenged and before the Court.
Until the rule is finalized and an administrative record is before a court with a valid challenge to that
action, it is premature to review specific parts of the analysis.
Plaintiffs’ final direct attack on the Lecky Declaration is to assert that “NMFS speculates
27/ Plaintiffs also misunderstand the scope of federal programs such as PACFISH. The area covered by that
plan does not include the coastal area that is the range of the SONCC coho. It applies only east of the
Cascade mountains, so offers some protections for other ESUs not at issue in this lawsuit (such as Snake
River and Columbia River Basin salmon and steelhead).
28/ The obligation to “confer” is not as species-protective as the obligation to “consult.” The trigger initiating
consultation is much higher (“likely to jeopardize,” see 50 C.F.R. § 402.10(a)), as compared to the “may
affect” threshold that applies to Section 7(a)(2) consultation see 50 C.F.R. § 402.14(a). Also, NMFS’
authority in a “confer” situation is limited to making “advisory recommendations,” see 50 C.F.R. § 402.10(c),
as compared to the obligation to impose a reasonable and prudent alternative to an action likely to pose
jeopardy in a “consult” situation, see 50 C.F.R. § 402.14(g)(5); 402.02 (defining “reasonable and prudent
alternative”).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 16 -

concerning SONCC coho and does so differently depending on the lawsuit and issues involved.”
Pls’ Response at 22. Plaintiffs’ suggestion is simply without basis or merit. While Plaintiffs
vaguely state that a declaration Mr. Lecky filed in another case “seems to contradict some of
Lecky’s findings in this case,” id., Plaintiffs do not bother to explain how the excerpts they present
from their Exhibit D in any way are inconsistent with this testimony in this case. Indeed, there is
no inconsistency. The declaration filed in the PCFFA case explained why NMFS stood by its
finding of “jeopardy” in the biological opinion on the Klamath Irrigation Project, i.e., because the
agency continued to believe the SONCC coho were in need of protection. Here, Mr. Lecky asserts
that the SONCC coho are in need of protection in view of several additional concerns, including the
Klamath Project. Thus, there is no inconsistency.
Mr. Lecky explained in the PCFFA declaration that the agency bases its conclusions on the
best available information, as the ESA requires (for both biological opinions under ESA Section 7
as well as listing determinations under ESA Section 4), and acknowledged that the available
information is in some respects incomplete or imperfect. This is a fact of life for all agency
determinations based on Section 7 and Section 4. 29/ There is nothing improper or inconsistent about
either of Mr. Lecky’s declarations, which a fair reading of each demonstrates.
Plaintiffs’ discussion of many of the federal protections other than the ESA, as well as the
protections afforded by Oregon and California, appears to be drawn largely or entirely from the
preamble to the proposed listing rule. See Pls’ Response at 24-25 (citing 69 Fed. Reg. at 33,148 et
seq.). The difficulty for Plaintiffs is that, even after noting and reviewing these programs, NMFS’
current view is that the species is in need of ESA listing. Plaintiffs offered no evidence regarding
these programs.
29/ The ESA requires use of the best available data; it does not require creation of new data or mandate use
of best possible data. Heartwood, Inc. v. USFWS, 380 F.3d 428, 436 (8th Cir. 2004)(“The requirement that
agencies use the ‘best scientific and commercial data available,’ 16 U.S.C. § 1536(a)(2), does not require an
agency to conduct new studies when evidence is available upon which a determination can be made.”)
(Section 7 context); Building Industry v. Norton, 247 F.3d 1241, 1246-47 (D.C. Cir. 2001) (fact that studies
were imperfect is “insufficient to undermine those authorities’ status as the ‘best scientific ... data available,’”
because that standard is not the equivalent of “the best scientific data possible”) (emphasis in original) (listing
context); Greenpeace Action v. Franklin, 14 F.3d 1324, 1337 (9 th Cir. 1992) (upholding a no jeopardy
conclusion “[d]espite the uncertainty of the data” because the agency had based its decision on the best
available scientific data and had grounded its decision in a consideration of the relevant factors).
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 17 -

III. THERE IS NO NEED OR BASIS TO IMPOSE A DEADLINE FOR COMPLETION
OF THE ONGOING ADMINISTRATIVE PROCESS.
Defendant-Intervenors, who urge the Court to leave the current listing in place, take the
unusual step of suggesting that the Court should impose a fixed deadline for NMFS to complete the
ongoing, post-Alsea administrative process. Def-Ints’ Memo. at 11-12. The request is unusual,
given that Plaintiffs did not press for such relief. Although Defendant-Intervenors suggest other
courts have already taken this step (and allegedly have “imposed deadlines,” Def-Ints’ Memo. at 12),
that is not accurate. 30/ The Court should decline Defendant-Intervenors’ suggestion for at least two
reasons.
First, Defendant-Intervenors in effect ask the Court to compel agency rulemaking, a form
of relief that is imposed only in extremely rare circumstances. See Arkansas Power & Light Co. v.
I.C.C., 725 F.2d 716, 723 (D.C. Cir. 1984). If the Court concludes that NMFS should undertake
further inquiry or reconsider its current final listing for SONCC coho, it should remand to allow
NMFS to determine the best way to do that consistent with the discretion the ESA and APA afford
it in discharging its multiple duties. However, absent substantial justification for doing so (which
no party has shown here), the Court should not “dictat[e] to the agency the methods, procedures, and
time dimension of the needed inquiry.” Federal Power Commission v. Transcontinental Gas Pipe
Line Corp., 423 U.S. 326, 333 (1976) (applying judicial review provision analogous to APA)
(emphasis added). See also Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 374
(1939) (“The 'remand' does not encroach upon administrative functions. It means simply that the
case is returned to the administrative body in order that it may take further action in accordance
with the applicable law.”) (emphasis added); NAHB, No. Civ. 00-0903-PHX-SRB (D. Ariz. June
28, 2004) at 10-11 (Attachment 4 to Fed. Defs’ Memo.) (declining to order FWS to re-open public
comment period on remand as requested by the defendant-intervenors in that case “in absence of any
statement of FWS’s position with respct to the need for additional public comment”).
30/ No court has entered an order requiring NMFS to complete its rulemaking by a certain time. Rather, several
courts have entered stays of similar challenges to West Coast salmonid listings pending completion of the
ongoing process, and have established dates for the expiration of their stays. Those dates were chosen to
coincide with NMFS’ estimate of when it would complete the process. This is not the same thing as entering
an order directing NMFS to complete its process by a fixed date.
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 18 -

Second, the ESA provides for an optional six-month extension (from the usual one year
period between proposed and final rules) to conclude rulemakings where there is “substantial
disagreement regarding the sufficiency or accuracy of the available data relevant to the
determination or revision concerned.” 16 U.S.C. § 1533(b)(6)(B)(i). This statutory provision
protects all interested parties, even Plaintiffs, from agency action premised on inadequate
information. The Court need not and should not preclude operation of the six-month extension
provision.
Here, the only claim before the Court challenges the 1997 listing decision; there are no
claims alleging untimely compliance with mandatory duties. Further, the comprehensive
administrative review that NMFS initiated in response to Alsea encompasses all potentially affected
ESUs, not just the SONCC ESU that is the subject of this suit. Thus, NMFS has exercised its
discretion to handle discrete, but related, issues together in one comprehensive process. See Mobil
Oil Exploration & Producing Southeast, Inc. v. United Distribution Cos., 498 U.S. 211, 230 (1991)
(“An agency enjoys broad discretion in determining how best to handle related yet discrete issues
in terms of procedures.”) (citations omitted). To avoid trammeling this broad discretion
unnecessarily, the Court should refrain from imposing a deadline that would run counter to the
framework of the ESA.
IV. CONCLUSION
Because Plaintiffs have not overcome the weight of Federal Defendants’ arguments as set
out in our opening brief, their suggestion to have the Court set aside the listing of the SONCC coho
should be denied. Further, the Court should deny Defendant-Intervenors’ WaterWatch of Oregon’s
request to impose a deadline for the completion of NMFS’ post-Alsea process as unnecessary and
contrary to the ESA.
//
//
//
//
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 19 -

Respectfully submitted this 17th day of December, 2004.
OF COUNSEL:
MICHAEL BANCROFT
NOAA Office of General Counsel
CERTIFICATE OF SERVICE
FED. DEFS’ REPLY MEMO.
REGARDING REMEDY - 20 -
s/ Ruth Ann Lowery
RUTH ANN LOWERY
Trial Attorney
Wildlife and Marine Resources Section
Environment & Natural Resources Division
United States Department of Justice
P.O. Box 7369
Washington, DC 20044-7369
Telephone: (202) 305-0210
Facsimile: (202) 305-0275
Ruth.Lowery@usdoj.gov
Attorneys for Federal Defendants
I certify under penalty of perjury that on December 17, 2004, copies of the foregoing
“Federal Defendants' Reply Memorandum Regarding Remedy” will be filed via the Court’s
electronic filing system, which is expected to automatically generate service upon the counsel
identified below (except that, for counsel shown in bold font, service will be made via first class
U.S. mail):
RUSSELL C. BROOKS
ROBIN L. RIVETT
Pacific Legal Foundation
10940 NE 33rd Place, Suite 109
Bellevue, Washington 98004
Telephone: (425) 576-0484
Facsimile: (425) 576-9565
rb@pacificlegal.org
rlr@pacificlegal.org
John M Groen
Groen Stephens & Klinger, LLP
2101 112th Avenue NE
Suite 110
Bellevue, WA 98004
Attorneys for Plaintiffs
MICHAEL MAYER, WSBA No. 32135
PATTI A. GOLDMAN, WSBA No. 24426
KRISTEN L. BOYLES, WSBA No. 23806
Earthjustice
705 Second Avenue, Suite 203
Seattle, Washington 98104
Telephone: (206) 343-7340
Facsimile: (206) 343-1526
mmayer@earthjustice.org
pgoldman@earthjustice.org
kboyles@earthjustice.org
KARL G. ANUTA, OSB 86142
Sokol & Anuta, P.C.
735 SW First Avenue
Portland, Oregon 97204
Telephone: (503)228-6469
Facsimile: (503)228-6551
sokolanuta@ipns.com
Attorneys for Intervenors-Defendants WaterWatch of
Oregon, et al.
CURTIS G. BERKEY, CAB 195485
Alexander, Berkey, Williams & Weathers LLP
2000 Center Street, Suite 308
Berkeley, California 94704
telephone: (510) 548-7070
facsimile: (510) 548-7080
cberkey@abwwlaw.com
Attorneys for Intervenor-Defendant Yurok Tribe
/s Ruth Ann Lowery