ELR Citation: ELR 20570
No(s). C00-1547R (W.D. Wash. Feb 27, 2002)

The court holds that some of an environmental group's challenges to the National Marine Fisheries Service (NMFS) Endangered Species Act (ESA) take prohibition exemptions regarding salmon are not ripe, and that the NMFS was not arbitrary or capricious in promulgating the ESA §4(d) rule. The court first holds that the environmental group failed to demonstrate that delayed review of the substance of the rule allowing the exemptions will cause it hardship. The court also holds that the group will have an opportunity to challenge the take exemptions when and if a harm becomes more imminent and they choose to challenge site-specific application of the §4(d) rule. The court further holds that although the §4(d) take exemptions are contained in a finalized rule, the rule is far from the culmination of the NMFS' decisionmaking process, and court consideration of the substantive issues at this stage would have to proceed with little factual development. Thus, the claims challenging the take exemptions are not ripe at this time. However, the court holds that for the claims that are ripe, the environmental group does not prevail. The language of §4(d) makes it clear that the NMFS may impose a take prohibition under that section. Moreover, the NMFS did not act arbitrarily or capriciously in conducting an environmental impact statement on the take prohibition as a whole or in conducting an informal consultation that concluded that the rule was not likely to adversely affect listed species.

The full text of this decision is available from ELR (26 pp., ELR Order No. L-483).

[Counsel not available at this printing.]