Just another goldfish down the toilet?: the fate of Pacific salmon after Alsea Valley and the de facto rescission of the 4(d) rule.

I.    INTRODUCTION
II.   "LET ME GO WILD": PACIFIC SALMON ON THE BRINK
      A. The Life Cycle of Pacific Salmon
      B. The Illusion of the Hatchery Solution
III.  CPR FOR SALMON: BRINGING FISH BACK FROM THE BRINK
      A. The NMFS Listings
      B. The Municicipal, Residential, Commercial, and Industrial
         Limit
      C. Impact of the 4(d) Rule on Local Governments
IV.   CRITICISMS OF THE 4(D) RULE
      A. Local Government Concerns: Takings Liability
      B. Affordable Housing Crunch
      C. Regional Concerns: Increased Urban-Rural Disparity
      D. Tenth Amendment Concerns with the 4(d) Rule
V.    NMFS's CAPITULATION: THE ALSEA VALLEY DECISION
VI.   THE AFTERMATH OF ALSEA VALLEY AND THE DECISION NOT TO APPEAL
VII.  MOTIVATIONS FOR FOREGOING APPEAL IN ALSEA VALLEY
VIII. CONCLUSION

I. INTRODUCTION

More than just a child's goldfish won at the Puyallup Fair (2), salmon are the spiritual symbol of the Pacific Northwest. Yet despite the salmon's iconic place in Northwest lore, many salmon runs face extinction. (3) Since the late 1880s, Northwesterners have struggled with the issue of salmon decline and the need for conservation in a rapidly developing region. (4) Over the years, salmon conservationists have suffered countless empty promises of salmon recovery including hatcheries, (5) international treaties allocating and limiting harvest, (6) federal statutes prohibiting water pollution (7) and requiring consideration of salmon in hydropower generation, (8) and listing salmon as "threatened" and "endangered" species under the Holy Grail of conservation measures, the Endangered Species Act (ESA). (9) Given the multitude of status quo-oriented recovery approaches, it was a refreshing surprise when, in July 2000, the National Marine Fisheries Service (NMFS) (10) promulgated regulations under section 4(d) of the ESA for purposes of salmon recovery. (11) Unlike other provisions of the ESA designed merely to avoid take of "endangered species," (12) section 4(d) requires NMFS to adopt rules necessary for the conservation of "threatened species." (13) In the past, section 4(d) had been used only to extend threatened species the same protections given to species listed as endangered. (14) In issuing the final 4(d) rule for threatened Pacific salmon, however, NMFS employed 4(d)'s flexibility by detailing how states and localities could choose a proactive role in the recovery of threatened salmon. Further, the rule allows states and localities to obtain exemptions from standard ESA provisions and penalties by significantly modifying existing laws, including land-use regulations, to conform with NMFS's salmon recovery guidelines. (15)

Pacific Northwesterners were still getting over the shock of the salmon listings and slowly beginning to accept the potential breadth and scope of the final regulations as a part of everyday life when concepts of "everyday" were shattered by the terrorist attacks of September 11, 2001. Yet, even as our President encouraged a return to normalcy, (16) Americans consistently commented that things once important no longer were. (17) And so, little fanfare or public debate met the September 10, 2001 decision of a federal judge in Oregon, Alsea Valley Alliance v. Evans (Alsea Valley). (18) That decision set aside NMFS's 1998 listing of Oregon Coast coho salmon for failure to consider hatchery fish when making the listing decision. This case, in turn, has put nearly all other Pacific salmon and steelhead listings, along with the 4(d) rule, in doubt.

The ESA listings and final 4(d) rule had been an encouraging sign that the federal government was finally taking steps to bring salmon back from the brink of extinction. However, the salmon's future is once again uncertain as the Bush Administration did not appeal Alsea Valley, and, instead, is reevaluating twenty-three of twenty-five salmon and steelhead listings to determine whether continued listing is warranted. (19) These events highlight a pivotal moment in the debate over salmon restoration and call for scrutiny of the role hatchery-bred fish should play in salmon recovery, 4(d) rule criticisms, the Alsea Valley decision, and the administration's subsequent decision to forego an appeal.

Accordingly, Part II of this Article will briefly discuss the life cycle and status of Pacific salmon, as well as the debate over hatchery-bred fish. Part III will provide background on the listings and final 4(d) salmon rule. Part IV scrutinizes the fears of developers who claim the rule will negatively affect housing affordability and further exacerbate urban-rural disparity in Washington state. This section also addresses the arguments raised by state and local officials that the rule will expose them to enormous takings liability and that the rule violates the Tenth Amendment. Part V reviews the Alsea Valley decision, and Part VI examines the likely aftermath of the decision. Finally, Part VII attempts to make sense of the Bush Administration's decision not to appeal the judgment, concluding with the notion that the misguided delisting will profoundly impact salmon recovery efforts in the Northwest.

II. "LET ME GO WILD": (20) PACIFIC SALMON ON THE BRINK (21)

The Pacific Northwest has been described as "wherever the salmon can get to," (22) but by that definition, the region has been vanishing before our very eyes. Since the passage of the Northwest Power Act in 1980, (23) three billion dollars have been invested to save the salmon, yet, by nearly all measurements, the effort has fallen miserably short (24) as salmon have now disappeared from roughly forty percent of their historic range. (25) To many local communities, saving salmon boils down to economics--the region has lost an estimated seventy-two thousand salmon related jobs over the last thirty years, and now loses an estimated $1.5 billion in salmon-based income annually. (26)

However, numbers on a corporate ledger alone do not explain the salmon's importance, as they are a key component of the "evolutionary and cultural heritage of the Northwest." (27) Fossil records date the first presence of salmonids in the Northwest at forty million years ago, with their early ancestors appearing near the end of the dinosaur age about one-hundred million years ago. (28) Native peoples of the Northwest have been fishing for at least ten-thousand years, as salmon became the centerpiece of tribal culture and religion. (29) The arrival of the commercial fishing industry to the Columbia River in 1866 gave birth to unique communities throughout the state that maintain their fishing culture to this day. (30) During the salmon season, it is a common sight to see what seems to be every father and son, husband and wife, man and dog, loading into boats or joining others on the various river banks to cast a line across the water with the hope that it will be met by a tug on the other end. Needless to say, salmon extinction is not an option. Unfortunately, while expressing a strong interest in salmon recovery, (31) Northwesterners have at the same time foolishly focused on supplanting wild runs with hatchery fish to justify the loss of healthy river ecosystems through ecologically unsound logging, grazing, irrigation, power generation, overfishing, and urbanization. (32) To truly understand that hatchery fish are not the answer to declining salmon populations, one must first understand the salmon's life cycle.

A. The Life Cycle of Pacific Salmon

There are five species of Pacific Salmonids: (1) chinook or king salmon (Oncorhynchus tshawytscha); (2) sockeye or red salmon (O. nerka); (3) coho or silver salmon (O. kisutch); (4) chum or dog salmon (O. keta); and (5) pink or humpback salmon (O. gorbuscha). (33) The genus name Oncorhynchus comes "from the Russian term for 'hooknose,'" and "refers to the hooked upper jaw that males develop during mating." (34) The steelhead trout (O. mykiss), is a sea-run rainbow trout. (35) Most salmon are anadromous, meaning that they begin their lives in freshwater, grow to maturity in the ocean, and return to their natal streams to spawn, where they spend the end of their days. (36)

Critically, over the course of their evolution, the Pacific salmon species have developed diverse life histories and traits that have allowed them to maximize their survival according to their habitat. (37) It is important to understand that general life history traits of salmon vary with each population of a particular species, and have been tailored to that population's local habitat. (38) Salmon generally finish incubating and emerge from their eggs as alevins within two months, spending the next six to eight weeks hiding in river gravel and feeding off the nutrients in their yolk sacs. (39) Once the sac is absorbed, alevins become fry and leave the protection of their gravel hideaways, foraging for the small aquatic organisms that they rely on for nourishment. (40) Some salmon remain in their natal streams or lakes for nearly three years before beginning their migration to the sea; others begin this journey immediately. (41) This freshwater fife stage is most dangerous for salmon, as disease, starvation, and predation cause significant loss of salmon fry. (42)

After salmon fry grow into parr (43) and descend toward the sea, they undergo a series of physiological changes called smoltification. (44) During smoltification, the salmon's blood chemistry changes, the fish grow scales, gain their silver hue, and begin their seaward migration. (45) Salmon that survive this transition from freshwater to saltwater will spend one to five or more years feeding and grow to enormous sizes. (46) Pink and sockeye spawn after a one to three year ocean maturation period, during which time they will grow to five to eight pounds; chum, steelhead, and coho mature for a similar period of time, but grow larger, eighteen to twenty pounds; and chinook mature for three to six years, growing to between eighteen and sixty pounds. (47)

After this period of ocean feeding, Pacific salmon make the poignant and dangerous journey back to their place of birth to spawn, undergoing yet another series of radical physiological changes. By the end of their journey the fish have changed colors to a deep brown or brilliant red and green, and males develop humped backs and hooked jaws--hence the name Oncorhynchus. (48) As many fly fishermen can attest, migrating salmon stop feeding and actually shrink as they live off their body fat for the remainder of their fives as they travel upstream to spawn. (49) After passing as many as eight dams--with accumulative mortality rates as high as ninety-five percent (50)--those salmon that do reach the spawning grounds engage in an elaborate mating ritual, searching out a bed of gravel in which the females will release their eggs and the males release their milt, and then cover the eggs in a mound of gravel called a redd. (51) The spawning fish will repeat this episode until they are sapped of all strength, at which point the current will sweep them away to eternal rest. (52)

What makes this migration so amazing and poignant is how resilient and intent salmon are on overcoming any obstacle to return to their natal streams, spawn, and pass life on to another generation. When one considers everything that a salmon must endure in its lifetime to make it back to its spawning grounds, it is simply astounding that the species still exist. Twice in their life span salmon must overcome the clogging, blocking, polluting, and harvesting of their "highways" to the ocean. Logging and road-building practices in old growth forests erode soil into rivers, blocking migration and suffocating eggs; agricultural practices pollute streams with animal and chemical wastes; irrigation dries-up redds and spawning grounds; dams block fish passage to spawning grounds; turbines kill thousands of fish; warm slack water behind dames is perfect for predatory fish that feed on young salmon; and commercial and recreational fisheries over-harvest, interfering with the cycle of natural propagation. (53) Additionally, decades of urban land-use practices have virtually wiped out inland salmon habitat. (54)

Finding a solution for these problems has proven to be vexing because the salmon's "extensive migrations create an ideal situation for obfuscation." (55) Every salmon-harming entity can point his or her finger at some other salmon-harming entity at some other place in the watershed. (56) Years of shifting the blame for the salmon's decline have wasted time, effort and money, and left nothing to show for it. (57) Some suggest that those of divergent interests should stop blaming each other and step forward to accept responsibility for their complicity in the salmon's decline. (58) However, as the debate over the role hatchery fish should play in salmon recovery threatens to unravel the protections that prevented the salmon's certain extinction, competing groups are once again staking out their positions on hatchery fish that are consistent with their underlying interests. None of these groups want rivers devoid of fish, but if led by campaigns of misinformation to support the continued proliferation of hatchery fish, that is exactly what they will receive.

B. The Illusion of the Hatchery Solution

For over 125 years, river resource users and would-be stewards have attempted to artificially enhance Columbia Basin salmon runs with hatcheries. (59) Among the early reasons for hatcheries were overfishing and habitat degradation, as cannery operators saw fish propagation as a source of unlimited bounty (60) and river resource users assumed hatchery propagation could compensate for habitat degrading activities such as mining, timber harvesting, and dams. (61) However, despite hundreds of millions of dollars invested in hatcheries, and over a century and a quarter to fine-tune their operation, Pacific salmon are on the brink of extinction. (62)

Salmon populations that have remained stable in numbers are now composed largely or entirely of hatchery fish. (63) However, the mere presence of these hatchery fish means nothing to the salmon's long-term survival. As a result of their diverse, population-specific life histories, salmon are unusually susceptible to local extinctions, and thus depend heavily on natural selection to provide genetic variation found only in wild fish for their long-term survival. (64) Because hatchery-bred fish are the product of "artificial selection, not natural selection," (65) the offspring of hatchery fish have a harder time surviving in the wild because they lack the necessary genetic fortitude. (66) Additionally, while the hopes of salmon restoration were once pinned on the promise of hatcheries, (67) for decades scientists have reported that hatchery fish actually harm the wild stocks of salmon they are intended to supplement, (68) It seems counterintuitive that hatchery fish could be making matters worse for salmon; the problem is too few fish, so one would think hatcheries are fixing things. However, the sobering truth is that the propagation of hatchery fish, now mainly continued for purposes of commercial and recreational harvest, harms wild salmon stocks. (69)

Predictably, the release of artificially bred fish into rivers has allowed interbreeding with wild salmon. (70) This interbreeding can result in the loss of genetic resistance to disease or other genetic adaptations. (71) In addition to this interbreeding dilemma, the mere presence of the artificially bred fish causes an ecological risk, putting stress on streams' carrying capacity by creating competition with wild salmon for food and habitat. (72) Hatchery fish are often released into streams at a more advanced life stage than the local wild population; as a result, the larger hatchery fish win this competition and force wild fish into "marginal habitat" where the survival potential for young salmon fry is much lower. (73) Finally, wild salmon stocks are severely depleted by over-harvest, as they are often by-catch during intensive fishing of the hatchery population. (74) Salmon conservationists, armed with an abundance of such scientific support, should be confident that NMFS's 2002 revision of its hatchery policy will reflect a monumental shift from the use of hatcheries as a source of supplanting wild stocks, to a means of supplementing depleted stocks or reseeding streams now completely devoid of salmonoid life. (75) Any other policy approach could have devastating consequences for the continued survival of the salmon.

Finally, one truth so often overlooked in the midst of the hatchery fish debate is this: Salmon without rivers do not survive. (76) Whether hatchery fish are used to supplant or supplement runs of wild fish, they are just as susceptible to decline through deforestation, agricultural practices, grazing, industrial activities, urbanization, dams, and over-fishing. We know that overall salmon numbers have declined despite hatchery programs. Indeed, it is important to recognize that changes to the way we interact with salmon habitat will ultimately determine the salmon's long-term survival prospects. Nevertheless, a resolution of the hatchery fish issue centered on the restoration of wild salmon runs is imperative.

III. CPR FOR SALMON: BRINGING FISH BACK FROM THE BRINK

A. The NMFS Listings

In the early 1990s, NMFS began to address the issue of salmon decline by listing three subspecies of salmon as "endangered" (77) and thirteen subspecies of salmon as "threatened" (78) under the ESA, as well as by issuing a regulation under section 4(d) of the ESA prohibiting take of any species listed. (79) Section 9 prohibits a variety of activities, most importantly the unauthorized take of an endangered species by any private, state, federal, or foreign entity. (80) However, the ESA does not automatically prohibit take of threatened species by nonfederal entities. (81) Instead, when species are classified as threatened, section 4(d) requires that the Secretary of Interior or of Commerce issue "such regulations as he deems necessary and advisable to provide for the conservation" of threatened species. (82) Under section 4(d), the Secretaries have broad discretion to extend all endangered species protections to threatened species, including the imposition of take liability onto local and state entities, (83) Uniquely, however, 4(d) is also a flexible provision that allows the Secretaries to grant exceptions to the take prohibition for certain activities specified in the final 4(d) rule.

On July 10, 200, NMFS adopted its final 4(d) salmon rule, (84) and subsequently promulgated regulations to conserve thirteen populations of the salmon listed as threatened. (85) The rule's territorial scope is astonishing, affecting seventy miles in any direction from Seattle, including four of Washington's largest counties--a region with a population of three million, or about sixty percent of the state's employment, personal income, and gross product. (86) Upon first glance, the 4(d) rule appears to drastically curtail urban growth. (87) However, the final 4(d) rule avoided a one-size-fits-all approach, and made provisions for continued urban development by excluding from take liability those state, local, and municipal land-use decisions made under comprehensive plans and zoning ordinances approved by NMFS. (88)

B. The Municipal, Residential, Commercial, and Industrial Limit

More precisely, the final 4(d) salmon rule excludes from section 9 take prohibitions specified categories of activities that adequately limit impacts on listed threatened salmon. (89) Known as "limits," the final 4(d) rule's exclusions include--to the relief of government officials--"municipal, residential, commercial, and industrial development" and redevelopment (MRCI limit). (90) However, the 4(d) rule's MRCI limit does not automatically shield all local and municipal land-use decisions from section 9 liability. Rather, the 4(d) rule departs from the history of status quo-oriented salmon recovery measures by requiring specific local action toward salmon recovery. To obtain the MRCI limit, with its section 9 exclusion, states, localities, and municipalities must submit their MRCI ordinances and plans to NMFS. NMFS then analyzes the ordinances and plans to determine if they will affect the essential habitat of the listed salmon. (91) NMFS uses twelve review factors enumerated in the final 4(d) rule to determine the habitat effects of MRCI ordinances and plans. (92) Only if the MRCI ordinances and plans meet the twelve review factors will the submitting government entity receive the "safe harbor" of the MRCI limit--thereby avoiding section 9's prohibitions. (93)

Participation in the 4(d) process is entirely voluntary and localities retain the right not to obtain a 4(d) limit. (94) However, localities that do not obtain the limit must either avoid engaging in or approving activities that might result in take or apply for a section 10 incidental take permit. (95) Attempts to completely avoid take would be risky, not to mention nearly impossible. Applications for section 10 take permits would require, among other things, development of a habitat conservation plan (HCP)--the downside being that HCPs tend to be restrictive, focusing generally on only one project or one area at a time. (96) Comparatively, the 4(d) rule allows states, localities, and municipalities to address all thirteen types of limit-related activities within their jurisdiction in one comprehensive salmon plan, which may be submitted in a tidy package to the NMFS for approval. (97) In this respect, the 4(d) rule is revolutionary: Its flexible, localized approach can prevent the urban gridlock feared by developers, but, at the same time, may provide a more effective long-run strategy for protecting salmon by prompting localities to adopt meaningful, practical, and reliable salmon conservation measures.

C. Impact of the 4(d) Rule on Local Governments

State, local, and municipal governments, apparently not fully appreciating this flexibility, adamantly opposed the 4(d) rule, fearing not only direct take liability for their own actions, (98) but also indirect liability for permitting or licensing certain private development activities under regulatory regimes relating to land use. (99) It is well settled that localities can be held liable when their own activities directly injure or kill protected species. (100) In addition, however, several cases provide a legal basis for holding government entities responsible under the ESA for failing to regulate certain private activities that result in harm to listed species. (101) While indirect ESA liability is still a developing area of law, state and local government fear of the 4(d) rule was at least partially justified as penalties for violating section 9 can be severe--up to $25,000 per take, or each fish harmed or killed. (102)

The 4(d) rule's primary effect on state and local governments is that it will force them to revise local land-use ordinances and comprehensive plans to make them fish-friendly. (103) Washington State has developed a comprehensive salmon plan. (104) However, the onerous task of obtaining 4(d) limits has been largely left to the localities, (105) as the rule requires that each jurisdiction--or collective of jurisdictions--develops its own plan to qualify for the 4(d) rule MRCI limits. (106) To date, the only noteworthy comprehensive salmon plan to have sought and been granted the MRCI limit has been the Metro Functional Plan developed by three counties and twenty-four cities in the Portland, Oregon metropolitan area. (107) A similar plan, the Tri-County Proposal, has been devised by a coalition of three counties and twenty-seven cities in the Everett-Seattle-Tacoma corridor of western Washington. (108) An examination of the Tri-County Proposal shows that localities and municipalities will have to adopt substantial changes to their development practices if the proposal is ever to be submitted to and approved by NMFS and, more importantly, if it is to be sustained after periodic review. (109)

The Tri-County Proposal, yet to be submitted to NMFS for approval, (110) identifies early actions to protect salmon habitat in order to preserve options for recovery, and develops long-term conservation strategies on a watershed level, or Watershed Resources Inventory Areas (WRIA). (111) The boundaries of WRIAs are defined under state regulation, (112) and generally adhere to the watershed boundaries of major river or lake systems, not necessarily to political boundaries. (113) As a part of the proposal's early actions, participating counties and localities have pledged to review and selectively tighten several key land-use ordinances that currently do not adequately protect salmon and salmon habitat. (114) Specifically, the proposal's land-management program has planning and regulatory components. (115) The planning element calls for counties to update comprehensive plans to include model provisions that ensure impacts of land-use practices on salmon habitat are considered when local governments make land-use decisions. (116) The proposal's regulatory aspect "requires local governments to give more intense scrutiny to development proposals" adjacent to water bodies that support salmon, areas referred to as the "Management Zone." (117)

Accordingly, local governments must chose to regulate development within the Management Zone in accordance with one of two options: 1) a locality can enact stricter standard development regulations and give landowners the option to follow these standards, or 2) upon the landowner's election of this second option, perform site-specific habitat evaluations with mitigation requirements that are tailored to the individual site. (118) Under option one, developers can follow a "cookbook" of regulations, including a one-hundred foot buffer from the water body, limited development in the next one-hundred feet, planting and maintaining native vegetation, and allowing no more than ten percent impervious surface. (119) Ostensibly, property owners with a large parcel could choose to leave the two-hundred foot management zone untouched and develop only in the landward area outside that zone. Owners with smaller properties that are located entirely within the Management Zone could chose option two, necessitating completion of a habitat evaluation detailing the habitat, the potential impacts of the project and how those impacts will be mitigated. If a study concluded that the impacts of the project were acceptable, the landowner would proceed with the project. In all cases, development within localities' Management Zone areas must be done in a way that meets federal standards for preserving salmon and salmon habitat. (120) This new federal presence in local land-use decisions, however, does not bode well with localities and landowners who vigorously expressed their criticism of the rule during the comment period.

IV. CRITICISMS OF THE 4(D) RULE

Not surprisingly, local governments and land developers adamantly opposed the 4(d) rule, arguing that it contravened the Fifth and Tenth Amendments of the United States Constitution, and that it was poor policy for a region struggling to supply affordable housing and increase economic opportunities in rural areas. Local governments feared that the 4(d) rule and the prescriptive regulations required to qualify for the rule's MRCI limits would limit development to such an extent that disgruntled landowners would immediately bring takings claims to challenge the regulations. (121) Land developers expressed concern about the increased regulation that would surely stem from the 4(d) rule, arguing that it would add costs to land development and home construction, thereby decreasing the amount of affordable housing in the Puget Sound area. (122) Local governments in rural areas criticized the rule as favoring the larger jurisdictions in the more affluent suburbs west of the Cascades, suggesting that the rule would exacerbate existing urban-rural disparity. (123) Finally, state and local governments have raised the possibility that the rule violates the Tenth Amendment by forcing the states to enact legislation for salmon protection. (124)

A. Local Government Concerns: Takings Liability

During the rule-making process, many opposed the 4(d) rule because they believed it would result in property being taken without compensation, and thereby result in Fifth Amendment takings liability. (125) However, to date no property owner has successfully brought a takings claim challenging the federal government's ESA authority to limit the use or development of land. (126) In fact, in the United States Court of Federal Claims, (127) only one ESA case related to land-use regulation has ever been reported--it was dismissed upon the government's motion for summary judgment. (128) Some might point to the lack of takings challenges to the 4(d) rule and other ESA land-use regulations as proof that property owners enjoy ample protection of their property rights under the ESA regime. It is more likely, however, that these challenges are absent from the judicial landscape because either 1) they are deterred from court by procedural obstacles, such as the ripeness doctrine or litigation costs, or 2) local regulations enacted pursuant to the 4(d) rule and the like simply do not rise to the level of a taking.

For landowners, the goal of judicial relief often proves elusive, as the ripeness requirement works as a deterrent to asserting federal takings claims. (129) The Supreme Court has repeatedly held that takings claims based on permit denials are generally not ripe for review until the regulatory agency has "reached a final decision regarding the application of the regulations to the property at issue." (130) By requiring a "final decision" as a prerequisite to review, the courts learn "how far" a regulation goes, and in turn can better determine whether it goes "too far. (131) That is, whether it has deprived a landowner of "all economically beneficial use" of the property (132) or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred. (133) However, the "final decision" requirement virtually ensures that a landowner will never get his day in court, as final decisions are delayed by the lack of ESA time limits on the consideration of permit applications and by repetitious mitigation plan negotiations. (134)

The Court of Federal Claims recognizes that the federal government could avoid takings challenges in perpetuity, and therefore, employs a "watered down" version of the ripeness requirement. (135) Instead of a "final decision," as required by the Supreme Court, the Court of Federal Claims requires that the government "reach a decision that actually affects the plaintiff" (136) and that the landowner utilize all reasonable variance type procedures or show that such a procedure would be futile or so burdensome "that it effectively deprives the property of value." (137) Despite what appears to be an easier standard to meet, (138) the ripeness requirement nevertheless remains a potent deterrent to owners who feel they have been adversely affected by ESA land-use restrictions, as lack of ripeness is frequently asserted by the United States in motions to dismiss takings claims. (139) Put succinctly, the Court of Federal Claims' more inviting stance on ripeness is little consolation to landowners who must wait years seeking judicial relief on the actual merits of their takings claim.

In addition to overcoming the ripeness requirement, would-be plaintiffs must contend with a second procedural obstacle--limits on their resources of time and money. (140) Plaintiffs must battle the government and its current practice of opposing every motion--regardless of the merit of opposition--all the way through the various contortions of litigation, from pre-trial discovery through layer upon layer of appeal. (141) Failure to obtain a section 10 Incidental Take Permit can bring a developer's plans to a standstill or cancellation, and plunge the developer into financial rain. Clearly, only those with economic, physical, and emotional fortitude need apply.

Certainly, the procedural obstacles of the ripeness doctrine and litigation costs work to prevent ESA-related takings challenges in the Court of Federal Claims. However, the most significant reason why no takings claims have been brought to challenge the 4(d) salmon rule is because the rule is a mandate only to state and local government entities that voluntarily choose to submit an application for a 4(d) limit. (142) Because the 4(d) process is not prescriptive and does not include federal regulations that directly apply to landowners, (143) an essential jurisdictional element is missing that otherwise would allow landowners to bring a takings claim against the federal government in the Court of Federal Claims. (144) Instead of the Court of Federal Claims, most takings claims related to the 4(d) rule are likely to be brought in state court to challenge state and local government regulations enacted pursuant to the 4(d) rule. Because United Supreme Supreme Court jurisprudence does have some impact on the state courts for the purposes of analyzing takings claims based on state law, (145) plaintiffs may not see radically different results in state court than those they would expect in federal court. Thus, a property owner who challenges local land-use laws enacted pursuant to the 4(d) rule must contend with the familiar burdens of proof: either 1) a Lucas v. South Carolina Coastal Council categorical taking, (146) or 2) a Penn Central Transportation Co. v. City of New York regulatory taking. (147) As the Supreme Court has instructed, a categorical taking arises where there has been a physical invasion or appropriation of the property by government, (148) or the action of the government in regulating the uses that can be made of the property denies the landowner all economically viable use of the property, except where the owner's interest was not part of his title to begin with according to state property or nuisance law. (149) Where the government neither physically invades property nor denies a landowner all economically viable use of their property, courts make a case-specific inquiry into 1) the character of the regulation, 2) the economic impact on the landowner, and 3) the extent of interference with investment-backed expectations. (150) Under this complex and fact-specific analysis, a regulatory takings claim becomes much more difficult to bring because, absent a clear-cut physical appropriation by the government, the outcome turns on a weighing of the three factors by oft-divided courts. (151)

Despite the enormous inequity that many landowners find in the inability to develop their property, land-use regulations and ordinances enacted pursuant to the 4(d) rule are highly unlikely to result in takings liability for defendant-governments. Some property owners have brought categorical takings claims, alleging regulations that allowed state-protected species to enter and graze on private property constituted a physical invasion or appropriation of property rights; however, not one of these claims has survived summary judgment. (152) Furthermore, only a single riparian water rights holder has successfully brought a takings claim based on the physical appropriation of water to conserve endangered fish. (153) This water rights case does not, however, provide much precedential value to landowners affected by the salmon listings, because as Judge Wiese explained:

   In the context of water rights, a mere restriction on use--the
   hallmark of a regulatory action--completely eviscerates the right
   itself since plaintiffs' sole entitlement is to the use of the
   water.... ("[t]he right of property in water is usufructuary,
   and consists not so much of the fluid itself as the advantage of
   its use."). Unlike other species of property where use restrictions
   may limit some, but not all of the incidents of ownership, the
   denial of a right to the use of water accomplishes a complete
   extinction of all value. (154)

It is fairly clear that a takings claim alleging the 4(d) rule worked a physical appropriation of land is a bona fide "fish out of water," as regulations enacted pursuant to the rule will deny some usages of land, but will not eviscerate all usages--at least in the water rights context. The more plausible 4(d)-related takings claims are those alleging 4(d) regulations deprived the plaintiff of all economically viable use of their property, or those stating a regulatory takings claim. Such claims may survive summary judgment, as it is overwhelmingly conceded at all levels of government that the 4(d) rule negatively affects the scope of development, and in turn, property values. (155) Nonetheless, property owners typically lose on categorical takings claims because most regulations enacted pursuant to the 4(d) rule do not entirely prohibit use, (156) but merely regulate the conditions under which such use may occur. In other words, a property owner is still allowed to develop and use his land, it just may not be the most profitable use. (157)

For instance, under the Tri-County Proposal, (158) a landowner will be required to divert development, at most, two-hundred feet away from a salmon-bearing water body) (159) In all likelihood, very few cases will present themselves in which the owner's parcel lies entirely within the two-hundred foot buffer. (160) Where such a situation arises, however, takings claims will never succeed for several reasons. First, the Tri-County Proposal allows landowners to avoid application of fixed regulations, including the two-hundred foot buffer requirement, by completing a site-specific habitat evaluation. (161) If an evaluation concludes a proposed project will not cause loss of habitat functions, the project may proceed. (162) If the project will cause a loss of habitat functions, or will preclude future restoration efforts, the project may still proceed, although certain conditions and mitigation plans may be required before a permit is issued. (163) Second, participating jurisdictions may prevent takings claims by invoking the proposal's "Reasonable Use Procedure," which allows the equivalent of a variance, or exception, from the 4(d)-related regulations if enforcement would deny all reasonable use of a parcel. (164) The property owner must demonstrate that

(a) Application of [the] program to the parcel would deny all reasonable use of the property;

(b) There is no other reasonable use with less impact on salmon habitat [as demonstrated by an analysis of] practicable on-site alternative[s]....

(c) The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the development proposal site and is consistent with the public interest; and

(d) Any development permitted to the management zone is the minimum necessary to allow for reasonable use of the property. (165)

In addition, the property owner may be required to mitigate the habitat impacts of the development. (166) Under these provisions of the Tri-County Proposal, Lucas-like categorical takings claims should be avoidable as long as at least some development is allowed upon such parcels, (167) and any mitigation measures required pursuant to a habitat evaluation are proportional to the impact of the proposed development. (168)

Under the Penn Central regulatory takings analysis, (169) a property owner would have to concede that protection of endangered species is an entirely permissible government goal. (170) Although the concessions are likely to stop there, Supreme Court jurisprudence dearly demonstrates a significant diminution in economic value is required to establish a taking, as the Court has rejected takings claims based on 75 and 87.5 percent diminutions in value. (171) Certainly, it is possible that a landowner could show the 4(d) process or Tri-County Proposal caused such a diminution in value that it rises to the level of a taking. However, given the flexibility of the 4(d) rule and the Tri-County Proposal--with its site specific habitat evaluation option and reasonable-use exception--the possibility of a judicial finding of takings liability is so unlikely that it is shameful opponents of the 4(d) rule even raised this argument. (172)

Finally, in a recent decision, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (Tahoe-Sierra), (173) the Supreme Court held that the mere enactment of regulations implementing development moratoria did not constitute a per se taking of property, but rather, whether a taking occurred depended on consideration of the Penn Central factor. (174) In Tahoe-Sierra the Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling thirty-two months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area. (175) The Tahoe-Sierra Preservation Council, a group of real estate owners affected by the moratoria and an association representing such owners, filed suit claiming that TRPA's actions constituted a Fifth Amendment taking. (176) The District Court found that there had not been a "partial taking" under the Penn Central analysis, but rather the moratoria constituted a categorical taking under Lucas because TRPA temporarily deprived petitioners of all economically viable use of their land. (177)

On appeal, the Ninth Circuit reversed and held that Lucas applied only to the rare case in which a regulation permanently denies all economically viable use of an entire parcel, whereas the regulations at issue had only a temporary impact on petitioner's fee interest. (178) The Ninth Circuit also concluded that Penn Centrals ad hoc balancing approach was the proper framework for analyzing whether a taking had occurred, but that Tahoe-Basin had not challenged the District Court's conclusion on the Penn Central issue. (179)

In a six to three decision, the Supreme Court affirmed the Ninth Circuit and acknowledged, without applying, Penn Central as the appropriate analysis for allegations of categorical but temporary takings, (180) Tahoe-Sierra has significant implications for takings claims brought to challenge 4(d)-related regulations. The 4(d) rule and pursuant regulations are essentially like development moratoria--temporary measures that give government entities time to plan for salmon recovery. When the 4(d) rule is lifted, landowners may try to bring takings claims for the period of time that their property use was burdened by the rule. Prior to Tahoe-Sierra Supreme Court jurisprudence indicated that a total deprivation of all economically viable usage, no matter how temporary, was still a compensable taking under the Fifth Amendment. (181) However, Tahoe-Sierra established that any claims brought to recover recompense for temporary burdens on land use caused by the 4(d) rule must surmount the Penn Central analysis. As discussed above, would-be plaintiffs face a steep "uphill battle" in challenging the 4(d) rule under such a regulatory takings theory. (182)

B. Affordable Housing Crunch

Millions of Americans face a lack of affordable housing in the form of substandard housing, rents at rates of more than half of one's income, and the forced choice among other basic needs, such as food, healthcare, education, and clothing. (183) Thus, ensuring the availability of low-income housing is a political priority in the Pacific Northwest, as highlighted by the comprehensive plans of the counties participating in the Tri-County Proposal. (184) As seen in the Tri-County Proposal, the 4(d) rule requires participating counties and localities to make substantial changes to their current land-use planning and zoning practices. (185) Meanwhile, developers and homebuilders are concerned that the practical result of these regulatory changes will be a shortage of affordable housing. (186)

Developers argue that 4(d) salmon protections will reduce the amount of buildable land, resulting in fewer lots and increased construction costs that will push the cost of housing higher, thereby putting a strain on the supply of affordable housing. (187) Exacerbating the problem is that even before the 4(d) rule was a passing thought of federal regulators, Washington state passed a Growth Management Act in 1990 requiring towns and cities to designate "urban areas" large enough to accommodate development for 20 years of projected growth. (188) As a result, counties devised urban-growth boundaries (UGBs) with the intention of leaving the rural areas outside the boundary untouched. Developers say the 4(d) rule will make large sections of the urban areas off-limits to development, leaving local governments two politically unpopular choices: increase urban density in non-habitat areas, or allow sprawl beyond the UGB. (189) Either choice, say the developers, will mean more expensive new homes in one of nation's least affordable housing markets. (190)

Among the regulations stemming from the 4(d) rule that developers say will substantially increase housing costs--as much as $20,000 to $30,000--are those that require extended buffers from waterbodies, stormwater controls, and biological/habitat evaluations. (191) Developers say that the potential development value of property will be diminished by the requirement of a two-hundred foot buffer zone from riparian and lake areas because the amount of "buildable" land will be decreased. (192) Also, "the proposed [4(d)] Final Rule includes two major requirements for stormwater control: regulating new development and retrofitting existing neighborhoods that do not have modern stormwater control facilities." (193) Developers contend that for a representative five thousand to eight thousand square-foot lot, the new stormwater regulations will add costs of between $8,000 and $12,000 per home. (194) Developers are also displeased with the requirement to conduct a biological or habitat evaluation on many projects. (195) An evaluation, developers say, will add costs as biologists are hired to conduct an evaluation, and create delay to a project as permit reviews will take longer. (196)

Where the average price for a new single-family residence purchased in King County, Washington has at times stood at over $300,000, and in a state that has ranked fortieth in the nation in home-ownership rate, (197) complaints by developers and homebuilders that the 4(d) rule will lead to a shortage of affordable housing are disturbing. Upon closer examination, however, it becomes clear that the developers' arguments are flawed for two reasons. First, it is not a foregone conclusion that the counties' UGBs cannot be extended to compensate for housing lost due to salmon protections. For instance, the King County Council adopted a policy of expanding its UGB if housing development is restricted in areas with severely declining salmon runs. (198) Second, developers and homebuilders make a common assumption that by limiting the supply of developable land, all land-use policies--including those borne of the 4(d) rule--will reduce the supply of housing. Any novice economist understands that the price for housing will be high, and thereby less affordable, if the housing supply is low relative to demand. (199) This reasoning is appealing on its face, but misses many of the nuances affecting housing affordability. (200) Housing prices are not determined solely by the availability of buildable land, rather, they are actually determined by a myriad of interacting factors, including the elasticity of the supply and demand for housing, land prices, the type of housing available, and the degree to which consumers have a choice in housing and the ability to move within and between markets. (201) Housing affordability is also affected by the degree that land-use regulations--including those that presumably will be enacted pursuant to the 4(d) rule--vary in enactment and enforcement between states, regions, and localities. (202) Granted, 4(d)-related land-use regulations will add some additional cost to the price of newly constructed homes, (203) but it is misleading to claim, as developers do, that 4(d)-related buffering regulations will be directly responsible for a decrease in the supply of affordable housing--especially before any interested stakeholder really knows how regulations will be tightened pursuant to the 4(d) rule, and moreover, how they will be applied.

C. Regional Concerns: Increased Urban-Rural Disparity

With the application of the 4(d) rule to both urban and rural areas of the Pacific Northwest, officials in relatively small jurisdictions are worried about their ability to obtain the rule's MRCI limits, and assure developers that local review and approval of construction projects will not lag behind. (204) Drawn-out NMFS approval of revised local land-use regulations could delay local officials' ability to review and approve projects. If faced with such delay, developers might decide to build elsewhere, causing greater economic disparity between urban and rural areas. Furthermore, even if smaller jurisdictions obtain MRCI limits, they must pay to maintain those limits. Habitat acquisition, capital stormwater improvements, as well as enforcement and monitoring of permitted stormwater discharges could be cost prohibitive to many small municipalities contemplating an MRCI limit application. Smaller jurisdictions have minimal funds to pay for roads and law enforcement, yet these necessities would need to be foregone to achieve the MRCI limits. (205)

Through the 1990s, the Seattle area's "hot" economy bolstered the city's "jet city" nickname, (206) as a tech boom ignited wages and home prices. (207) However, not all Washingtonians benefited from the boom times, as the state faces the largest urban-rural disparity in thirty years; in fact, the state recently ranked forty-ninth in the country in urban-rural disparity. (208) As the gap in urban-rural education and per capita income has grown, the prospect of widening these gaps, even in the name of salmon, is disheartening. However, there is no evidence that the 4(d) rule or salmon listings will play into increasing urban-rural disparity. The existing disparity is largely the result of a widening education gap and the fact that higher paying jobs are found along the I-5 corridor of western Washington. (209) Other factors contributing to the increased urban-rural disparity are the poverty rate and lower incomes in rural areas that are not offset by lower housing costs. (210) NMFS has recognized that most small local and county governments lack the resources and staff needed to assemble all relevant ordinances and planning provisions into a wholesale MRCI growth management program like the Tri-County Proposal. (211) Accordingly, NMFS has expressed willingness to review individual ordinances or regulations that local governments may choose to submit for consideration under the MRCI limit. (212) NMFS's flexible approach should prevent smaller jurisdictions from being relegated to the "fringe" of the 4(d) process, (213) and assure developers that everything possible is being done to speed permitting processes short of rolling back the 4(d) rule. Until it is seen how the 4(d) rule and subsequent local regulations work in practice, the burden of proof should be on developers and localities to show that salmon listings will impact urban-rural disparity.

D. Tenth Amendment Concerns with the 4(d) Rule

Assuming the 4(d) rule survives ongoing efforts to delist salmon species, state and local governments overburdened by the cost of salmon protections could mount a Tenth Amendment challenge to the rule, arguing the federal government lacks the authority to make states choose between 4(d) participation or incurring indirect ESA liability. (214) As the Supreme Court has emphasized on numerous occasions, "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress." (215) Essentially, the Tenth Amendment confines the powers of the federal government to those enumerated within the Constitution; those powers not enumerated are, by default, reserved to the states. Pursuant to this maxim, the federal government cannot "commandeer" state actors to carry out federal legislative initiatives unless the federal program is somehow linked to at least one of Congress's constitutional powers--Congress cannot simply command a state to enact and enforce legislation, (216) This principle was demonstrated in the 1990s, when the Supreme Court resurrected Tenth Amendment jurisprudence in a pair of decisions that struck down federal laws requiring state law enforcement officials to conduct background investigations of gun permit applicants, (217) and obligating states to legislatively provide for low level radioactive waste disposal, or in the alternative, to assume liability for waste generated in-state. (218)

The statute at issue in New York v. United States (219) was the Low-Level Radioactive Waste Policy Amendments Act of 1985 (the Act). (220) Congress passed the Act to address concerns over an increasing lack of capacity at the nation's existing low-level radioactive waste sites. (221) Under the Act, each state was responsible for providing, either by itself or in cooperation with other states, for the disposal of low-level radioactive waste generated within the state. (222) States were authorized to enter into interstate agreements to establish and operate regional disposal facilities. (223)

To encourage states to comply with their statutory obligations to provide for the disposal of waste generated within their borders, the Act provided three types of incentives. The first incentive, or monetary incentive, allowed the collection of a disposal surcharge by states with instate disposal facilities, which would be transferred to an escrow account held by the Secretary of Energy, and then paid out to each state that complied with a series of deadlines for the ability to dispose of waste either in-state or at a regional facility. (224) States that did not meet the deadline were required either to take title to the waste generated within its borders or forfeit to the waste generators any incentive payments received. (225) The second incentive, or access incentive, allowed states with sites to charge noncompliant states double, triple, or quadruple surcharges, depending on the length of noncompliance, and eventually deny access to waste generated within noncompliant states. (226) Finally, the third incentive, or take title provision, offered states, as an alternative to regulating pursuant to Congress's direction, the option of taking title to, and possession of, the low-level radioactive waste generated within their borders and becoming liable for all damages waste generators suffer as a result of the states' failure to take prompt possession. (227)

The Court found the Act's monetary incentives well within Congress's Commerce, Taxation, and Spending Clause authorities, and thus "not inconsistent with the Tenth Amendment." (228) Similarly, the Court upheld the authorization of states with sites to impose surcharges as an exercise of Congress's Commerce Clause powers. (229) However, noting that Congress may not simply "commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program," (230) the Court struck down the third incentive. (231) The Court found that because both a "take title" instruction to states, and a direct order to regulate, independently, would be beyond Congress's authority, (232) "it follow[ed] that Congress lack[ed] the power to offer the States a choice between the two." (233) The Court equated the take title provision to a compelled subsidy from state governments to radioactive waste generators, and found the Constitution would not permit such a directive from Congress. (234) Likewise, the provision requiring the states to assume liability for generators' damages was compared hypothetically to an Act of Congress directing the States to assume the liabilities of certain state residents; (235) the Court found that such federal action would "commandeer" state governments into the service of federal regulatory purposes, and therefore be inconsistent with constitutional principle of separation of powers. (236) Observing that the Constitution does not enable Congress--regardless of the federal interest at stake--to command a state government to enact state regulation, the Court struck down the Act's regulatory alternative because it essentially commanded state governments to implement legislation enacted by Congress. (237)

The holding of New York provides local and regional governments in the Northwest ample ammunition to argue that they, too, are being compelled to choose between two equally unconstitutional regulatory directives. Local and state governments may argue that on one hand, like the take title/liability provision at issue in New York, (238) jurisdictions that refuse to implement regulations pursuant to the 4(d) rule face liability for authorizing or failing to control the species-harming activities of private actors. On the other hand, localities and states may argue that, like the alternative choice to regulate low-level radioactive waste pursuant to Congress's direction, (239) states and localities are required to tighten existing regulations or enact entirely new regulations to comport with listed species protections enumerated in the 4(d) rule. Such a challenge is likely to fail however, because the 4(d) rule is not structured as stringently, nor is liability as certain as it was under the Act at issue in New York.

The 4(d) rule and the limits it proposes are not prescriptive regulations like the New York Act--there is no directive to seek a 4(d) limit from NMFS--but merely an invitation to reduce potential liability by obtaining one of the rule's limits. (240) Furthermore, unlike the Act in New York, local and state governments have several alternatives to obtaining a 4(d) limit: conduct business as usual, as many activities do not affect a listed species, thereby precluding the need to obtain a limit or alter activity; informally comply with a limit by modifying programs to be consistent with the limit; or obtain a section 7 or section 10 permit through consultation with federal agencies. (241) The 4(d) rule is also distinguishable from the situation in New York, because there is no liability imposing provision mirroring that found to be unconstitutional in New York. (242) Under the Act in New York, the generators' liability was passed to states automatically if they refused or failed to provide for in-state or regional disposal facilities; (243) the 4(d) rule contains no such liability shifting provision--in fact, it is not even a prescriptive regulation. (244) Importantly, indirect ESA liability is a judicially constructed creature upon which not all courts agree. (245) The fact that indirect ESA liability would be imposed upon a state or local government by a federal court--rather than by Congressional or federal agency fiat--provides further reason to distinguish the 4(d) rule from the regulatory scheme at issue in New York, and conclude that a Tenth Amendment challenge of the 4(d) rule would fail.

V. NMFS'S CAPITULATION: THE ALSEA VALLEY DECISION

Despite the disappointment of the ESA in general as a salmon recovery tool, (246) NMFS's adoption of the 4(d) salmon rule gave hope that meaningful steps were finally being taken to restore listed salmon runs. Thus, conservation groups and sport fishermen alike were stunned by Judge Michael R. Hogan's September 10, 2001 decision in Alsea Valley setting aside NMFS's 1998 listing of Oregon Coast coho salmon as "threatened" under the ESA. Judge Hogan ruled that in making an ESA listing decision, NMFS could not split an Evolutionarily Significant Unit (ESU) into two components--hatchery and wild fish--and list only one component. (247) The central issue in the case revolved around NMFS's decision to exclude hatchery fish populations when making listing decisions. (248) Because the remedy Judge Hogan awarded was a declaratory judgment that the listing of the Oregon Coast coho ESU was invalid, it instantaneously endangered the future vitality of twenty-three other ESU listings from which hatchery fish were excluded. Unfortunately, the most significant fallout of Alsea Valley could be the de facto rescission of the 4(d) salmon rule if the other listings are similarly invalidated or if NMFS decides on its own to delist the salmon.

The dispute behind Alsea Valley begins with the definition of ESU. As a part of the definition of "species," the ESA includes, but does not define, the term "distinct population segment" (DPS). (249) In 1991, NMFS issued its interpretation of the term "DPS" as it pertained to Pacific salmon, (250) and equated the term to the "evolutionary [sic] significant unit." (251) The ESU, as NMFS explained, is a stock of Pacific salmon that 1) is "substantially reproductively isolated from other conspecific population units; and" 2) "represent[s] an important component in the evolutionary legacy of the species." (252) Following the release of its ESU interpretation of DPS, NMFS published its policy entitled "Interim Policy on Artificial Propagation of Pacific Salmon Under the Endangered Species Act" (the "Hatchery Policy"). (253) Under the Hatchery Policy, NMFS is required to focus its recovery efforts on "natural populations." (254) Consequently, hatchery fish will no longer be included in recovery efforts unless NMFS finds they are similar to the wild fish population and "essential to recovery." (255) A species listing can still include hatchery populations, but this is a remote possibility, as NMFS found the hatchery fish are an ecological danger to natural populations. (256)

Following its 1995 status review of west coast coho salmon, NMFS issued a proposed rule to list six ESUs of coho salmon as threatened. (257) Included within this group of six coho ESUs to be listed as "threatened" was the "Oregon Coast ESU," (258) but NMFS later retreated from this proposed listing because it reached an agreement with the State of Oregon to assure protection of the fish under the state's salmon restoration efforts. (259) NMFS's decision not to list the Oregon Coast coho was subsequently challenged by a lawsuit brought in federal district court. (260) The court set aside the decision and remanded to the agency on the basis that NMFS's consideration of nonbinding state protection measures was improper. (261)

In accordance with the court's order in Oregon Natural Resource Council v. Daley, NMFS reinitiated the listing of the Oregon Coast coho ESU as threatened in an August 10, 1998 final rule. (262) In establishing this ESU, NMFS only listed "naturally spawned" coho, a decision which was consistent with the agency's 1993 Hatchery Policy. (263) Even though NMFS found that the Oregon Coast ESU included nine populations of hatchery fish, in addition to wild populations, the agency decided not to include the artificially propagated fish in the listing decision, because the agency concluded the hatchery fish were not "essential to recovery" of the species as a whole. (264) In this decision, NMFS did acknowledge that these hatchery populations may be considered in the future for recovery efforts, but that "in this context, an 'essential' hatchery population is one that is vital for full incorporation into recovery efforts." (265)

The Alsea Valley plaintiffs sought to invalidate the August 10, 1998 listing decision, arguing that NMFS's distinction between wild and hatchery fish violated the Administrative Procedure Act's (266) prohibition on arbitrary and capricious agency decision-making. (267) In agreeing with the plaintiffs and invalidating the listing, Judge Hogan reviewed the language and Congressional intent of the ESA and found that NMFS relied on factors upon which Congress did not intend it to rely. (268) Importantly, Judge Hogan specifically held that NMFS's creation of the ESU as its interpretation of what constituted a "distinct population segment," as well as the factors of geography and genetics used to define an ESU, was a valid construction of the ESA. (269) However, Judge Hogan ruled that NMFS's exclusion of hatchery coho populations from listing protection was arbitrary and capricious because the ESA did not make provision for NMFS to further distinguish between members of the same DPS/ESU once NMFS had decided that hatchery and wild coho were part of the same DPS/ESU. (270)

Judge Hogan did recognize that NMFS could consider listing only an entire species, subspecies, or DPS, (271) but under his interpretation of the ESA, NMFS could not list part of the Oregon Coast coho DPS/ESU based on the hatchery/naturally spawned distinction, or any other distinction below DPS/ESU level. (272) Judge Hogan indicated he might have found the distinction in the listing decision proper had NMFS defined "hatchery spawned" coho as a separate DPS, but dismissed such a possibility in short shrift, as he concluded that geographically and genetically, hatchery spawned and naturally spawned coho are essentially identical. (273) Finally, Judge Hogan dismissed NMFS's argument that the listing decision served the ESA goal of "genetic diversity" within natural populations. Judge Hogan found that "genetic diversity" was but one goal of the ESA that could not, by itself, justify a listing distinction that departed from the definition of DPS, wherein, according to Judge Hogan, Congress had "expressly limited the Secretary's ability to make listing distinctions among species below that of subspecies or a DPS of a species." (274)

In reaching his conclusion that the ESA does not permit NMFS to make listing distinctions below that of subspecies or DPS of a species, Judge Hogan relied on the case of Southwest Center for Biological Diversity v. Babbit (Southwest Center). (275) In Southwest Center, an environmental group sued for judicial review of the decision by the Fish and Wildlife Service (FWS) to deny the group's petition to list the northern goshawk under the ESA. (276) The group had petitioned FWS to list the "'northern goshawk located west of the 100th meridian'" as a DPS which was endangered under the ESA. (277) FWS denied the petition, concluding the group had failed to produce evidence of reproductive isolation or genetic differentiation with the goshawk of the eastern United States. (278) However, a federal judge in Arizona reversed and remanded FWS's finding because there was no consistent FWS policy regarding the definition of DPS and because in other cases in which a finding of DPS was made, neither "reproductive isolation" nor "genetic differentiation" had been required. (279) On remand, FWS again denied the petition citing a new policy of only "one subspecies per DPS," whereas Southwest's petition covered three subspecies of goshawk. (280) The court again invalidated the DPS policy, holding that it violated the ESA. (281)

Examining the language of the ESA, the Southwest Center court observed that the ESA's definition of "species" included any subspecies and any DPS of any species, but did not include the DPSs of subspecies. (282) Rather, the court noted, had Congress intended "that a DPS contain only one subspecies, it would have allowed only the listing of DPSs of subspecies." (283) Accordingly, the court ruled that FWS's policy of denying listing petitions that contained more than "one subspecies per DPS" was arbitrary and capricious. (284) While the holding of Southwest Center establishes that a federal agency may not deny a listing petition because it contains more than one subspecies, (285) it does not, thereby, establish the inverse--that a petition containing only one DPS of a subspecies or anything less than an entire species must be denied. But this is just the rule that Judge Hogan extracted from the Southwest Center holding. (286) Judge Hogan's interpretation of Southwest Center is unfortunate--he essentially legislated a new regulation under the ESA (the "all or nothing" rule). (287) Then, in reaching his "arbitrary and capricious" conclusion, Judge Hogan found NMFS had violated this "new" rule. Judge Hogan completely ignored the significant flexibility that Southwest Center found the wildlife services have in identifying DPSs; (288) hopefully, the customary deference that NMFS is given in such interpretations will be restored on appeal. (289)

What makes Judge Hogan's "arbitrary and capricious" conclusion even more suspect is his reliance on legislative history. As Justice Scalia has commented concerning judicial reliance on legislative history:

   The greatest defect of legislative history is its illegitimacy. We
   are governed by laws, not by the intentions of legislators. As the
   Court said in 1844: "The law as it passed is the will of the
   majority of both houses, and the only mode in which that will is
   spoken is in the act itself...." Aldridge v. Williams, 44 U.S. 9, 3
   How. 9, 24, 11 L. Ed. 469 (emphasis added). But not the least of the
   defects of legislative history is its indeterminacy. If one were to
   search for an interpretive technique that, on the whole, was more
   likely to confuse than to clarify, one could hardly find a more
   promising candidate than legislative history. (290)

Arguably, there was no reason for Judge Hogan to rely on legislative history--if statutory language is unambiguous, principles of statutory interpretation call for judges simply to apply the law. (291) The ESA's definition of "species" unambiguously allows a DPS listing based on less than an entire species. Specifically, "species" is defined by the ESA to mean "any subspecies." (292) However, when interpreting the word "species" as it is used a mere fourteen words later in the same definition, Judge Hogan divorced its previously supplied definition to conclude that the words "DPS of any species" does not mean "DPS of any subspecies," (293) even though by its very usage, the word "species" includes "subspecies." (294) Presumably, Judge Hogan believed that if Congress had intended to allow listings of "DPS of any subspecies," it would have added those precise words to the act. To do so, however, would have been redundant, as Congress's use of the words "DPS of any species" accomplished the same result because the word "species" here necessarily included the word "subspecies." (295) Furthermore, in Southwest Center the court read the plain language of the same statutory provision to protect listing petitions containing more than one subspecies per DPS, (296) implicitly permitting a DPS listing below that of an entire species. Unfortunately, it is not only Judge Hogan's reliance on legislative history that is troubling, but also his curious interpretation of that history and the weight to which he gives it.

First, Judge Hogan quotes a House Report discussing the 1978 amendment of the term "distinct population segment." (297) The species delineation was amended, so that it would "exclude taxonomic categories below subspecies from the definition." (298) Second, Judge Hogan quotes language from a Senate Report upon adoption of the DPS definition amendment:

   The committee agrees that there may be instances in which [the Fish
   and Wildlife Service] should provide for different levels of
   protection for populations of the same species. For instance, the
   U.S. population of an animal should not necessarily be permitted to
   become extinct simply because the animal is more abundant elsewhere
   in the world. Similarly, listing populations may be necessary when
   the preponderance of the evidence indicates that a species faces a
   widespread threat, but conclusive data is available with regard to
   only certain populations. (299)

Comically, Judge Hogan quotes these legislative historical materials in support of the proposition that "Congress expressly limited the Secretary's ability to make listing distinctions among species below that of subspecies or a DPS of a species." (300) Neither of these reports--alone or together--adds up to an "express" limitation on the Secretary's authority to list a DPS based on less than an entire species. The Senate Report rejected an amendment proposed by the General Accounting Office (GAO) that would have prevented listings of geographically limited populations of vertebrates, and countered GAO fears that the existing definition "could result 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." (301) Even if the reports stood for the proposition for which Judge Hogan cites them, he would be unfairly attributing statements in the reports "to all Members of both Houses of Congress (or at least to a majority of the Members of each House), and to the President ... views expressed by the particular personage, or committee of personages, whose statements are being described." (302) It is just too much to believe that members of both Houses of Congress were conscious of those statements in the reports and actually agreed with them. Finally, Congress knows how to make express statements of policy; had it intended to prohibit the extension of particularized protections to wild stocks of fish--or, put another way, intended to require equal protection of an artificially-propagated species--it would have said as much. Absent such statutory language, it is surely outside any court's province to create it and quite impossible to interpret it--that is, until Congress speaks it.

Judge Hogan's decision would certainly stand as more principled were it not to appear he was swayed more by a laical disbelief that "two genetically identical coho salmon [are] swimming side-by-side in the same stream, but that only one receive[d] ESA protection while the other d[id] not," (303) and a clouded foray into legislative history, than by a plain reading of the statutory language, and a fair interpretation of the Southwest Center holding. While critical evaluation of Alsea Valley is intended to show weaknesses in Judge Hogan's reasoning, it may be a purely academic exercise. Fortunately, for reasons discussed below, the likely outcome of the Alsea Valley decision is not the "Chicken Little" scenarios predicted by some, but continued ESA protection of wild salmon.

VI. THE AFTERMATH OF ALSEA VALLEY AND THE DECISION NOT TO APPEAL

Judge Hogan's ruling in Alsea Valley came as an enormous shock to. members of environmental and fishing groups that had not appeared in the case (304) but were then left scrambling to intervene after NMFS announced that it would not seek an appeal of the decision. (305) Judge Hogan found that the groups had standing and, despite their tardiness, allowed them to intervene for purposes of appeal. (306) The Ninth Circuit Court of Appeals granted an emergency stay of Judge Hogan's ruling, (307) which thereby restored the ESA protections for the Oregon Coastal coho until final resolution of the appeal. (308) However, any benefit of the stay was quickly negated as NMFS announced that pursuant to the Alsea Valley decision, it would conduct a comprehensive review of its hatchery policy, as well as twenty-three of the twenty-five salmon and steelhead listings to determine whether a listing is still warranted when hatchery fish are considered part of an ESU. (309)

Despite the serious implications of listing review on the continued vitality of wild fish protections, conservation groups appear to be nonchalant about the possibility Alsea Valley will be affirmed, apparently believing instead that a defeat on appeal could be mitigated by NMFS action splitting the ESU into wild/hatchery components or enhanced protection of the wild fish in the existing ESU. Although it appeared for some time that NMFS lacked the political commitment to wild salmon recovery, (310) the agency now seems to lean toward some of the Alsea Valley responses favored by conservationists. In July 2002, NMFS issued a working draft revision of its hatchery fish policy that emphasizes populations that are self-sustaining In their natural ecosystem. (311) The hope is that the working draft will moot Judge Hogan's decision. However the document is pre-decisional and has yet to be submitted for public comment. (312) While the working draft is a promising shift in policy toward wild fish recovery, the delays in its final promulgation and the uncertainty of its ultimate outcome prove the conservationists were right to direct their energies toward the Alsea Valley appeal.

The working draft essentially follows the existing policies for ESA listings of Pacific salmon, in that NMFS must identify and then evaluate the ESU to determine whether it warrants listing. In the past, NMFS established an ESU by identifying natural populations and determining their status before considering whether hatchery-bred fish were a part of the same ESU. Under the working draft, NMFS proposes to identify whether populations of salmon, whether composed of hatchery and/or natural fish, represents an ESU. (313) Prior to Alsea Valley, NMFS considered a hatchery population a part of the ESU if it was similar to the listed natural population and essential to recovery. (314) However, under the proposed revision NMFS plans to "consider a hatchery population as part of an ESU only if it is representative of the ecological and genetic diversity of the ESU, and if it has not diverged appreciably from the parent population." (315) Under the working draft, only after identifying the ESU will NMFS determine whether the ESU warrants a listing, that is, whether it is at "risk of extinction, or if it is likely to become so within a foreseeable period of time." (316) If an ESU as a whole warrants listing, all populations in an ESU will be listed, regardless of whether they are of natural or hatchery origin, as prescribed by Alsea Valley.

A key component in the working draft is NMFS's interpretation of the ESA's definition of "threatened" and "endangered." The ESA lists the factors used to determine whether a species is threatened or endangered, (317) but it does not provide NMFS guidance on how to evaluate the significance of the extinction risk or the potential for endangerment. Accordingly, in the working draft of the hatchery policy, NMFS has interpreted the listing requirement assessments of extinction risk, or the risk of endangerment, to be based on the likelihood that an ESU as a whole is serf-sustaining through natural reproduction in its natural ecosystem over the long term. (318) Because a hatchery population is neither self-sustaining nor naturally reproducing--humans must intervene to strip and cultivate eggs from the fish--the likelihood is that every currently listed ESU that is fund to include hatchery fish will retain its ESA listing if this policy is ultimately adopted.

In addition to an ESU listing containing both hatchery and wild fish, NMFS hinted in its working draft to the possibility of separate ESUs for hatchery and wild fish, or for enhanced protections for wild fish within a combined ESU. If Alsea Valley is affirmed on appeal, or if NMFS's revised hatchery policy suffers from similar judicial invalidation, adoption of these alternative approaches is not a foregone conclusion. NMFS possibly could have avoided the Alsea Valley decision had it split the wild and hatchery fish into separate ESUs initially. (319) If NMFS split hatchery and wild fish into separate ESUs now, arguably, any ESU consisting exclusively of wild salmon would continue to be protected, based on ESA listing factors and NMFS policy. (320) Judge Hogan recognized the possibility of such a split ESU in Alsea Valley, however, he quickly dismissed this possibility and found that hatchery spawned coho are not "substantially reproductively isolated" because, once released from the hatchery, hatchery-spawned coho and naturally spawned coho within the Oregon Coast ESU share the same rivers, habitat, and seasonal runs, and furthermore, that hatchery spawned and natural coho are the same species and interbreed when mature. (321) Under the working draft, NMFS plans to follow its 1991 ESU policy; however, a hatchery population will be considered a part of the ESU only if it is ecologically and genetically similar to the parent population. The hatchery population will be excluded from the ESU if it has "diverged appreciably" genetically or behaviorally from the parent or the hatchery population's lineage is "substantial[ly] uncertain[]." (322) This new approach favors wild fish, and increases the possibility of a separate ESU finding for wild and hatchery fish, or an ESU finding for wild fish but no ESU finding for very similar hatchery fish that can, nevertheless, be distinguished genetically from their wild cousins. Lawyers who represented the Alsea Valley Alliance have decried the working draft, arguing that it subverts the spirit of Judge Hogan's decision and continues to make arbitrary distinctions between identical fish. (323) Because the Alsea Valley plaintiff group has promised to fight NMFS's new policy should it retain its current form, and given the case against a split-ESU has already been laid out by Judge Hogan in Alsea Valley, it is premature to expect that NMFS will ultimately adopt a split-ESU approach. (324)

An alternative approach to the Alsea Valley decision would be to establish enhanced protections for wild fish within a wild/hatchery fish ESU listing. Under the working draft, NMFS proposes to apply the protections of sections 7, 4(d), and 9 as appropriate for all listed populations, but indicates that this does not mean these protections will apply to hatchery populations exactly as they will to natural populations. The explanation for differing protection levels for fish within the same ESU would be that ESA protections have little, if any, applicability to hatchery fish that are artificially propagated. For instance, a key component of the ESA, critical habitat designations, (325) would not apply to artificial hatcheries that support hatchery fish; only the natural ecosystem essential to the recovery of wild salmon would be designated as critical habitat for existing ESUs. Additionally, federal obligations under section 7, habitat conservation plans, and incidental take permits all address impacts on a given species "in the wild," (326) but because hatchery fish do not survive "in the wild," impacts to populations in the existing ESU would only be considered if they affect wild populations. Upon first glance, this approach appears to suffer from a glaring flaw in that it assumes the ESU will retain its listing even when hatchery fish are considered a part of the ESU. Arguably, when the thousands of hatchery-spawned fish are counted, their significant numbers jeopardize a finding that the species is in danger of extinction, a prerequisite to a listing as "endangered" or "threatened." (327) While it is true that NMFS's regulations need not equally protect populations within an ESU, (328) NMFS's ability to extend enhanced protections to only a portion of a listed ESU population depends on the underlying assumption that the working draft's "self-sustaining naturally reproducing"-oriented status review will result in no net loss of current listings, and that inevitable legal challenges of the policy will not experience Alsea Valley-like success.

In a perfect world, protections for wild fish would remain in place and the hatchery policy would be revised so that hatchery-spawned populations serve not as an end to harvest, but rather as a means of facilitating wild salmon survival and recovery. Significantly, NMFS has released target numbers for naturally spawned fish recovery in the Columbia River basin. (329) However, the drastically low numbers raise questions whether NMFS is merely trying to "avoid elimination" of the salmon, or if it is truly committed to is legal obligation to "bring the species back from the brink sufficiently to obviate the need for protected status." (330) Conservation groups should not expect a return to historical run levels, nor should regulators aim to merely "avoid elimination" or simply bring the "species back from the brink." One would assume that conservation groups and regulators would agree that our rivers should be teeming with wild fish, but because of the high level of uncertainty in the aftermath of Alsea Valley--having been characterized as a "'cottontail racing through the briars: First this way, then that way, and back around and finally, where in the hell are we?'" (331)--conservation groups were right to forcefully assert their position on appeal, rather than expect NMFS to save the day with a pro-wild salmon regulatory response.

VII. MOTIVATIONS FOR FOREGOING APPEAL IN ALSEA VALLEY

Lacking a plausible explanation from the administration as to why it chose not to appeal Alsea Valley, conservation groups are left to guess its true motivations. President George W. Bush has not been shy in expressing his belief that corporations, states, and local communities can do a better job protecting the environment than the federal government. (332) Instead of employing "command and control" tactics to force businesses and landowners to eliminate emissions, clean up polluted property, and protect wildlife and wilderness, the Bush Administration believes that programs based on economic incentives and local control in corporations and states will achieve greater environmental protection. (333) And while it is possible that the Bush Administration's decision not to appeal the Alsea Valley decision can be explained as a deferential shift to local salmon restoration initiatives, (334) the administration's entrenched views on energy production and dam removal, as well as its general ambivalence towards the salmon recovery plan, appear to be carrying the day. Ironically, this ambivalence towards the salmon plan and hell-bent commitment to retaining dams could act as a double-edged sword, as failure to support the salmon plan may subsequently lead to dam breaching.

The Bush Administration has repeatedly touted the President's philosophy that "not all wisdom lies in Washington"; that instead, partnerships of corporations and states "will get much more accomplished." (335) In line with this philosophy, NMFS's announcement that it would not pursue an appeal of Alsea Valley stated that, instead, the agency would "focus on working with local salmon recovery efforts and public-private partnerships and local watershed recovery efforts." (336) As of this writing, the government's only endangered species related proposal to incorporate this community-based approach is the "Cooperative Conservation Initiative," (337) which provides incentives to landowners and citizen groups to become more active in protecting sensitive species habitat. (338) However, NMFS's only concrete plan pertaining to salmon recovery simply involves gathering all interested stakeholders for discussions toward consensus. (339) For a salmon recovery plan to work that is community-centered and based on free-market principles, the administration needs to lay out concrete and specific economic incentives as it has for other environmental media. (340) Until a plan is unveiled that demonstrates how economic incentives will be structured to bring about the desired community response, government salmon recovery efforts are headed in a direction that serves the administration's "higher priority" policies.

Federal regulators responsible for salmon recovery have championed community consensus, but inevitably the current salmon impasse is merely a reflection of the administration's policy on energy exploitation and dam removal. It is no secret that the administration abhors our country's dependence on foreign sources of energy. (341) The White House has made increasing the production of energy on federal lands a primary element of its energy plan--including maximizing the output of federal hydroelectric power facilities. (342) However, while dam breaching has been repeatedly cited as an indispensable aspect of salmon recovery, (343) President Bush campaigned on the promise not to breach dams. (344) Certainly, not all campaign promises are fulfilled, (345) but the administration's dam removal stance seems fairly well entrenched. (346) It is quite possibly because of this fervent commitment to dam retention that the administration has consistently insisted on nearly every type of alternative salmon recovery approach imaginable--from fish ladders, barges, and trucks, (347) to changed forest practices, (348) and limited ocean fisheries (349)--except that which would be the single most effective measure in restoring salmon: dam removal.

A final explanation behind the administration's decision not to appeal Alsea Valley can be found in the administration's ambivalence towards the salmon recovery strategy, the Columbia Basin biological opinion, (350) and current salmon recovery efforts in general. The biological opinion was approved in 2001 and targets things like habitat improvements, hatchery reforms, and retrofitting dams as the preferred methods to bring back the salmon from the brink of extinction. (351) The biological opinion has a built-in status review process designed to make sure that salmon recovery strategies are moving forward and receiving adequate funding. (352) If the first review in 2003 and subsequent reviews in 2005 and 2008 fail to demonstrate that the plan is working, federal agencies could recommend Congress authorize dam removal. (353) As it stands now, the plan is grossly underfunded and has, for the most part, not been carried out. The White House budget fails to adequately fund several agencies and departments that have authority over salmon recovery, (354) and in 2001, at least seventy-five percent of the year's required conservation measures were not carried out by the administration. (355) In an ironic twist, failure to finance and carry out the salmon recovery plan could lead to lawsuits and trigger a recommendation to breach dams--despite the fact that President Bush campaigned on a promise to save both the dams and the salmon. (356) Finally, this ambivalence toward the biological opinion could be indicative of a more general distaste for current salmon recovery efforts within the administration: Not only did the administration decline to appeal Alsea Valley, but it even opposed conservationists' efforts to intervene for purposes of appeal. (357) FWS asked federal courts to rescind critical-habitat designations for nineteen endangered or threatened species of salmon and steelhead after a federal judge ordered an economic impact analysis of the designations. (358) Finally the Department of Justice has vigorously opposed a lawsuit filed by a group of commercial anglers in U.S. District Court in Oakland, California, seeking an increase flow of water to the Klamath River, and even opposed an emergency release of water to aid returning salmon. (359) This selective zealousness by the federal government is disappointing, and highlights even more the need for the administration to make a solid commitment to meaningful salmon recovery.

VIII. CONCLUSION

As a fly fisherman, Justice John Voelker sums up the conflict between fish conservation and desired land-use and natural resource exploitation well:

   I fish because I love to; because I love the environs where trout
   are found, which are invariably beautiful, and hate the environs
   where crowds of people are found.... [I]n a world where most men
   seem to spend their lives doing things they hate, my fishing is at
   once an endless source of delight and an act of small rebellion.
   (360)

In the end, of course, there is much more to the conflict between fish conservation and development in the Pacific Northwest than garnered from the musings of a fly fisherman. The potential delisting of Pacific salmon and de facto rescission of the 4(d) rule will have a profound impact on the future success of salmon recovery efforts. The 4(d) rule is the region's best hope right now to preserve and restore its spiritual symbol. Those in the Pacific Northwest who hope to restore the salmon beyond the numbers envisioned by federal regulators, dam operators, and heavy water users in arid regions of protected salmon habitat, should not be deterred in their commitment to the 4(d) rule by legal or cost objections. It is clear that both Fifth and Tenth Amendment objections to the 4(d) rule are without merit, and that claims of increased housing costs and greater urban-rural disparity, when unveiled, are weakly supported and fail to draw a causal relationship between their purported claims and salmon restoration under the 4(d) rule. Most importantly, to discard the 4(d) rule now, after tremendous resources and precious time were put into developing it and beginning its implementation, would be an unrecoverable set-back in the effort to save the salmon.

(1) JIM LICHATOWICH, SALMON WITHOUT RIVERS: A HISTORY OF THE PACIFIC SALMON CRISIS 1-23 (1999).

(2) First held in 1900, The Puyallup Fair, officially the Western Washington State Fair, boasts of being the sixth most attended fair in the country. See generally WELCOME TO THE PUYALLUP FAIR, at http://www.thefair.com/(last visited July 19, 2003). Generations of Washingtonians have "done the Puyallup," no doubt, for the chance to win a goldfish in carnival games, only to have the poor creature expire and eulogized at a toilet-side wake within a week's time.

(3) NATIONAL ACADEMY OF SCIENCES, UPSTREAM: SALMON AND SOCIETY IN THE PACIFIC NORTHWEST 2, 75-76 (1996) [hereinafter UPSTREAM]. Distinctive local groups within each species of salmon are called stocks. A run is a common stock of fish on their way to breed in their freshwater home. FAY G. COHEN, TREATIES ON TRIAL 25 (1986).

(4) See MICHAEL C. BLUMM, SACRIFICING THE SALMON: A LEGAL AND POLICY HISTORY OF THE DECLINE OF COLUMBIA BASIN SALMON 6 (2002) (detailing the history of commercial harvests and conservation methods).

(5) Id. at 127.

(6) Id. at 165.

(7) See Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251, 1362(7), (12) (2000) (preventing discharge of pollutants into navigable waters).

(8) See Northwest Electrical Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. [section] 839 (2000) (elevating fish restoration to co-equal priority with hydropower generation).

(9) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000); Endangered and Threatened Species; Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionarily Significant Units, 65 Fed. Reg. 42,422, 42,425 (July 10, 2000) (codified at 50 C.F.R. pt. 223).

(10) NMFS, a subdivision of the National Oceanic and Atmospheric Administration (NOAA) within the United States Department of Commerce, is also known as NOAA Fisheries. See NMFS Has a New Name, 19/20 MMPA BULLETIN 1 (2000) (describing name change). For consistency, the agency shall be referred to as NMFS throughout this article.

(11) 16 U.S.C. [section] 1533(d) (2000).

(12) 50 C.F.R. [section] 17.31(a) (2003).

(13) 16 U.S.C. [section] 1533(d) (2000).

(14) Id.

(15) Endangered and Threatened Species; Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionarily Significant Units, 65 Fed. Reg. 42,422, 42,480 (July 10, 2000) (codified at 50 C.F.R. pt. 223).

(16) Holly Rosenkrantz, Bush Raises the Flag as Officials Urge a Return to Routines, BLOOMBERG NEWS, Sept. 23, 2001, LEXIS, News Library, Bloomberg News File.

(17) Steve Outen, We Should Give Thanks Every Day: Sept. 11 Puts Priorities in Perspective for Us This Holiday Season, CHARLOTTE OBSERVER, Nov. 22, 2001, at 2U, available at 2001 WL 30035857; Manu Dhingra Looks Back on September 11th and His Priorities (CNN television broadcast, Nov. 22, 2001), LEXIS, News Library, CNN FILE.

(18) 161 F. Supp. 2d 1154 (D. Or. 2001).

(19) Press Release, Nat'l Oceanic & Atmospheric Admin., NOAA Factsheet: Alsea Valley Decision (Nov. 2001) [hereinafter NOAA Factsheet]., available at http://www.nwr.noaa.gov/occd/110901_2.pdf.

(20) VIOLENT FEMMES, Blister in the Sun, on VIOLENT FEMMES (Slash 1983).

(21) Rob Taylor, Salmon Slip from Bounty to Brink, SEATTLE POST INTELLIGENCER, Mar. 3, 1998, at A1, available at 1998 WL 4287183.

(22) TIMOTHY EGAN, THE GOOD RAIN: ACROSS TIME AND TERRAIN IN THE PACIFIC NORTHWEST 22 (1990).

(23) Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. 96-501, 94 Stat. 2697 (1980).

(24) JOSEPH E. TAYLOR III, MAKING SALMON: AN ENVIRONMENTAL HISTORY OF THE NORTHWEST FISHERIES CRISIS 3 (1999).

(25) UPSTREAM, supra note 3, at 2, 75-76.

(26) GLEN SPAIN, AN ESSAY ON THE ESA's IMPORTANCE TO SALMON RECOVERY: WHY THE NORTHWEST NEEDS A STRONG ESA, at http://www.defenders.org/esa-5.html (last modified Apr. 8, 1997).

(27) LICHATOWICH, supra note 1, at 224.

(28) Id. at 11.

(29) Brian J. Perron, When Tribal Treaty Fishing Rights Become a Mere Opportunity to Dip One's Net into the Water and Pull it out Empty: The Case for Money Damages when Treaty-Reserved Fish Habitat is Degraded, 25 WM. & MARY ENVTL. L. & POL'Y REV. 783, 788 (2001).

(30) TAYLOR, supra note 24, at 62 (discussing the development of canneries on the Columbia River).

(31) LICHATOWICH, supra note 1, at 224.

(32) BLUMM, supra note 4, at 117.

(33) R.J. CHILDERHOSE & MARJ TRIM, PACIFIC SALMON AND STEELHEAD TROUT 25-26 (1979).

(34) LICHATOWICH, supra note 1, at 9.

(35) Endangered and Threatened Species: Threatened Status for One Evolutionarily Significant Unit of Steelhead in California and Oregon, 66 Fed. Reg. 9808, 9809 (Feb. 12, 2001).

(36) TAYLOR, supra note 24, at 5.

(37) LICHATOWICH, supra note 1, at 20.

(38) Id. at 22. Lichatowich observes that the spawning grounds of chum salmon are normally found in tidal zones and a river's lower reaches, but that certain chum stocks migrate over 1,500 miles to spawn. Also, while juvenile coho usually spend their freshwater rearing time in small streams and tributaries, some southwest Oregon coho spend their rearing time in coastal lakes. Finally, sockeye, which normally spend their freshwater rearing time in lakes, have been found to begin their seaward migration as fry in a few Alaskan and Canadian watersheds. Id.

(39) TAYLOR, supra note 24, at 5.

(40) Id.; CHILDERHOSE & TRIM, supra note 33, at 37-39; BLUMM, supra note 4, at 34.

(41) TAYLOR, supra note 24, at 5.

(42) BLUMM, supra note 4, at 34-35 (reporting that "80-90 percent of salmon fry are lost through predation alone").

(43) Salmon fry eventually grow into parr during their freshwater life history, developing vertical stripes that make them almost indistinguishable from other western trout. TAYLOR, supra note 24, at 5.

(44) Id.

(45) Id.

(46) Id.

(47) Id. at 5-6.

(48) BLUMM, supra note 4, at 32-33.

(49) TAYLOR, supra note 24, at 6; BLUMM, supra note 4, at 32-33.

(50) BLUMM, supra note 4, at 35.

(51) Id at 33-35.

(52) Id.; TAYLOR, supra note 24, at 6.

(53) See generally WASHINGTON STATE JOINT NATURAL RESOURCES CABINET, STATEWIDE STRATEGY TO RECOVER SALMON 18-30 (1999) (discussing anthropogenic causes of the decline of salmon populations).

(54) Id. at 20-21.

(55) LICHATOWICH, supra note 1, at 6.

(56) Id. at 6-7.

(57) Id. at 3-12; TAYLOR, supra note 24, at 255.

(58) TAYLOR, supra note 24, at 254-55.

(59) BLUMM, supra note 4, at 109.

(60) TAYLOR, supra note 24, at 114-116.

(61) BLUMM, supra note 4, at 111

(62) This, of course, may depend on who is counting and whether they are including hatchery fish in their numbers. See Alsea Valley, 161 F. Supp. 2d 1154, 1163 (D. Or. 2001) (noting the debate over whether or not to include hatchery fish with wild salmon for listing purposes).

(63) See id. at 1163 (noting that "hatchery spawned coho may account for as much as 87% of the naturally spawned coho").

(64) PATTI GOLDMAN, THE CURRENT ATTACK ON THE SALMON LISTINGS: ALSEA VALLEY ALLIANCE AND ITS IMPLICATIONS 2-3 (2002), available at http://www.earthjustice.org/backgrounder/documents /Salmon%20Listing%20Paper.pdf.

(65) BLUMM, supra note 4, at 115.

(66) Id.

(67) In the late 1880s, hatcheries began to appear in the Pacific Northwest to solve the adverse effects of habitat loss caused by mining, logging, and water diversions. By 1910, nearly a half-million hatchery salmon were being "dumped" into Northwest waterways. In 1960, pelletized feed was invented, which allowed hatcheries to raise increased numbers of fish, at even more advanced life stages. Jim Lichatowich & Seth Zuckerman, The Problem with Hatcheries, in SALMON NATION: PEOPLE AND FISH AT THE EDGE 26-29 (Edward C. Wolf & Seth Zuckerman eds., 1999).

(68) See BLUMM, supra note 4, at 119-126 (discussing no less than eight different studies that have found fault with current hatchery practices).

(69) GOLDMAN, supra note 64, at 2-3.

(70) Id. at 3.

(71) Id.

(72) Id. (citations omitted).

(73) Id.

(74) Id.

(75) BLUMM, supra note 4, at 117.

(76) LICHATOWICH, supra note 1, at 224.

(77) Threatened Marine and Anadromous Species, 50 C.F.R. [section] 223.102(a) (2003).

(78) Endangered Marine and Anadromous Species, 50 C.F.R. [section] 224.101(a) (2003).

(79) 50 C.F.R. [section] 223.203(a) (2003).

(80) 16 U.S.C. [section] 1538(a)(1) (2000). "Take" is defined as "actions that harass, harm, pursue, hunt, shoot, would kill, trap, capture, or collect." Id. [section] 1532(19). "Harm" is defined by regulation as "an act which actually kills or injures wildlife," which "may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. [section] 17.3 (2003). In 1995, the United States Supreme Court upheld this definition of harm, finding that it was a reasonable construction of the statute. Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 704-08 (1995).

(81) 16 U.S.C. [section] 1533(d) (2000).

(82) Id.

(83) Id.

(84) Endangered and Threatened Species; Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionarily Significant Units, 65 Fed. Reg. 42,422, 42,425 (July 10, 2000) (codified at 50 C.F.R. pt. 223).

(85) Restrictions Applicable to Threatened Marine and Anadromous Species, 50 C.F.R. [section] 223.203 (2003).

(86) Species Act May Chill Seattle's Growth, INVESTOR'S BUS. DAILY, Aug. 25, 1998, at A6, LEXIS, Nexis Library, Investor's Business Daily File.

(87) Id.

(88) 50 C.F.R. [section] 223.203(b)(22) (2003).

(89) Id. The final 4(d) rule listed 13 limits, or categories of activities excluded from section 9 take prohibitions, including: 1) activities conducted in accord with ESA incidental take authorization; 2) ongoing scientific research activities, for a period of 6 months from the publication of this final rule; 3) emergency actions related to injured, stranded, or dead salmonids; 4) fishery management activities; 5) hatchery and genetic management programs; 6) activities in compliance with joint

tribal/state plans developed within the parameters set forth in prior litigation; 7) scientific research activities permitted or conducted by the states; 8) state, local, and private habitat restoration activities; 9) properly screened water diversion devices; 10) routine road maintenance activities; 11) certain park pest management activities; 12) certain municipal, residential, commercial, and industrial (MRCI) development and redevelopment activities; and 13) forest management activities on state and private lands within the state of Washington. Id. at [section] 223.203(b).

(90) Id.

(91) See Endangered and Threatened Species; Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionarily Significant Units, 65 Fed. Reg. 42,422, 42,425 (July 10, 2000) (codified at 50 C.F.R. pt. 223). Some have suggested that the 4(d) limits are "second class" Habitat Conservation Plans, and that the limits will essentially authorize the killing of listed species if the submitted ordinances are consistent with review factors. Id. at 42,434. The underlying assumption of this criticism seems to be that the goal of any limit applicant is to "kill" salmon. On the contrary, the 4(d) rule merely allows limit applicants to avoid take liability once they have taken actions deemed sufficient to prevent salmon injury or death in the first place. In the long run, this should do more to enhance salmon recovery than standard ESA prohibitions, though this will turn on how strictly the 12 review factors are applied to MRCI limit applications. Id.

(92) Id. at 42,480.

NMFS will apply the following 12 evaluation considerations when reviewing MRCI development ordinances or plans to assess whether they adequately conserve listed salmonids by maintaining and restoring properly functioning habitat conditions:

(A) MRCI development ordinance or plan ensures that development will avoid inappropriate areas such as unstable slopes, wetlands, areas of high habitat value, and similarly constrained sites.

(B) MRCI development ordinance or plan adequately avoids stormwater discharge impacts to water quality and quantity or to the hydrograph of the watershed, including peak and base flows of perennial streams.

(C) MRCI development ordinance or plan provides adequately protective riparian area management requirements to attain or maintain PFC around all rivers, estuaries, streams, lakes, deepwater habitats, and intermittent streams. Compensatory mitigation is provided, where necessary, to offset unavoidable damage to PFC due to MRCI development impacts to riparian management areas.

(D) MRCI development ordinance or plan avoids stream crossings by roads, utilities, and other linear development wherever possible, and, where crossings must be provided, minimize impacts through choice of mode, sizing, and placement.

(E) MRCI development ordinance or plan adequately protects historical stream meander patterns and channel migration zones and avoids hardening of stream banks and shorelines.

(F) MRCI development ordinance or plan adequately protects wetlands and wetland functions, including isolated wetlands.

(G) MRCI development ordinance or plan adequately preserves the hydrologic capacity of permanent and intermittent streams to pass peak flows.

(H) MRCI development ordinance or plan includes adequate provisions for landscaping with native vegetation to reduce need for watering and application of herbicides, pesticides, and fertilizer.

(I) MRCI development ordinance or plan includes adequate provisions to prevent erosion and sediment run-off during construction.

(J) MRCI development ordinance or plan ensures that water supply demands can be met without impacting flows needed for threatened salmonids either directly or through groundwater withdrawals and that any new water diversions are positioned and screened in a way that prevents injury or death of salmonids.

(K) MRCI development ordinance or plan provides necessary enforcement, funding, reporting, and implementation mechanisms and formal plan evaluations at intervals that do not exceed 5 years.

(L) MRCI development ordinance and plan complies with all other state and Federal environmental and natural resource laws and permits.

Id. Some have criticized the review factors as unnecessarily vague. See BLUMM, supra note 4, at 211. However, it is really too early to tell how stringent NMFS's MRCI limit review will be. (93) 65 Fed. Reg. at 42,480.

(93) 65 Fed. Reg. at 42,480.

(94) Id. at 42,458, 42,468; NMFS, A CITIZEN'S GUIDE TO THE 4(D) RULE FOR THREATENED SALMON AND STEELHEAD ON THE WEST COAST 8 (2000), http://www.nwr.noaa.gov/1salmon/salmesa/4ddocs/citguide.pdf [hereinafter NMFS].

(95) 65 Fed. Reg. at 42,423.

(96) 16 U.S.C. [section] 1539(a)(2)(A) (2000).

(97) 65 Fed. Reg. at 42,458.

(98) "Persons" prohibited from taking protected species under the Act include "any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State." 16 U.S.C. [section] 1532(13) (2000). For example, a county would directly violate section 9 if it hired agents to destroy endangered species, or indirectly violate section 9 if it decided to develop city-owned property, thereby destroying habitat and causing death or injury to protected species, per the definition of "harm." 50 C.F.R. [section] 17.3 (2003).

(99) In addition to the ESA's take prohibition, government entities may not "solicit another to commit, or cause to be committed" any take or other offense outlined by the ESA. 16 U.S.C. [section] 1538(g) (2000). Several court decisions also support the imposition of liability on governmental agencies for failure to prevent illegal private actions. See Defenders of Wildlife v. EPA (Defenders), 882 F.2d 1294, 1300-01 (8th Cir. 1989) (holding the Environmental Protection Agency had caused take of protected species under section 9 by decision to register pesticides, despite fact that private individuals actually manufactured, distributed, and used the pesticides); Sierra Club v. Yeutter, 926 F.2d 429, 438-39 (5th Cir. 1991) (holding the Forest Service liable for taking of endangered species under section 9 by implementing management plan regulating private timber harvesting, which resulted in destruction of the species's habitat). Interestingly, both the Eighth and Fifth Circuits resolved the cases under section 9, rather than section 7, which bars any agency action jeopardizing a listed species. Nevertheless, the decisions applied section 9, and thus stand for the proposition that governmental entities can be liable under section 9 for regulatory regimes that authorize private activities resulting in the take of a listed species.

In addition to Defenders and Yeutter, in Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997), the First Circuit found the Commonwealth of Massachusetts liable for take for its issuance of gillnet and lobster pot fishing licenses that allowed practices ultimately responsible for take of the endangered northern right whale (Balaena glacialis). Id at 163. Similarly, in Loggerhead Turtle v. Volusia County (Loggerhead Turtle), 148 F.3d 1231 (11th Cir. 1998), the court found Volusia County liable for take of endangered and threatened turtles by failing, among other things, to ban beach driving during sea turtle nesting season. Id. at 1240.

(110) Loggerhead Turtle, 148 F.3d at 1240.

(101) Id.

(102) 16 U.S.C. [section] 1540(a)(1) (2000). What makes state fears of incurring financial liability for indirect take somewhat irrational is the fact that they are arguably protected from the ESA's citizen suit provision by the Eleventh Amendment. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 745-747 (2002) (extending principle of state sovereign immunity from lawsuits in federal court to adjudicative hearings by federal agencies); Alden v. Maine, 527 U.S. 706, 712 (1999) (denying right to recover damages in private lawsuits for violation of federal rights brought in state court against non-consenting states); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996) (holding that Congress cannot abrogate state sovereign immunity to suit in federal court under its Commerce Clause authority); see also Jean O. Melious, Enforcing the Endangered Species Act Against the States, 25 WM. & MARY ENVTL. L. & POL'Y REV. 605, 608 (2001) (discussing the idea that Eleventh Amendment immunity may allow states to "prevent environmentalists and landowners alike from direct efforts to enforce the states' obligations."). But see Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coil. Say. Bank, 527 U.S. 627 (1999) (finding that Congress can abrogate state sovereign immunity when legislating under the Fourteenth Amendment where such legislation is "appropriate" in addressing a Fourteenth Amendment evil or wrong); F. J. Dindinger II, Seminole Tribe's Impact on the Ability of Private Plaintiffs to Bring Environmental Suits Against States in Federal Court, 75 DENV. U. L. REV. 253, 273 (1997) (suggesting plaintiffs might advance claims of Fourteenth Amendment, equal protection violations to overcome state sovereignty defenses in environmental suits). Importantly, Eleventh Amendment immunity does not extend to counties or municipalities.

In a side note concerning indirect ESA liability as it applies to states, counties, and municipalities, a group of developers recently challenged the 4(d) MRCI limit by averring that a NMFS brochure on the MRCI limit prepared for local governments violated the APA by illegally forcing local governments to assume "vicarious liability" for enforcement of the ESA. Kittitas County v. Evans, No. 01-1955, slip op. at 7 (W.D. Wash. Aug. 1, 2002). A federal judge, however, rejected the claim as unripe, as the plaintiffs had failed to demonstrate that the brochure was a "legally binding agency directive." Id. at 10.

(103) To reiterate: In order to receive the safe harbor from take liability, every city, county, or regional government that proposes to promulgate land-use ordinances or comprehensive plans which regulate activities with the potential to affect critical habitat of the listed salmon, must submit the proposed regulation to NMFS for review and be granted a take limit. NMFS, supra note 94, at 8; cf. Jim Lynch, Endangered Salmon Listing Has Construction Plans on Ice, SEATTLE TIMES, July 25, 1999, at A1. If a jurisdiction's current land-use ordinance or plan does not meet the NMFS's criteria, it must change the local ordinance or comprehensive plan, if it is to be granted the take limit. Id.

(104) Salmon Recovery Planning Act, WASH. REV. CODE [subsection] 77.85.005-77.85.900 (2002).

(105) Valerie Ann Lee & Jaelith Hall-Rivera, Breathing New Life into the ESA: The Pacific Northwest's Endangered Species Act Experiment in Devolution, 31 Envtl. L. Rep. (Envtl. L. Inst.) 10,102 (2001).

(106) Endangered and Threatened Species; Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionarily Significant Units, 65 Fed. Reg. 42,422, 42,424 (July 10, 2000) (codified at 50 C.F.R. pt. 223).

(107) Id. at 42,424, 42,458; METRO CODE [subsection] 3.07.110-3.07.1240 (2003), http://www.metro-region.org/librarydocs/about/chap307.pdf (last visited July 19, 2003).

(108) 65 Fed. Reg. at 42,424.

(109) See id. at 42,426 (reiterating language from proposed rule that requires regular evaluation of programs for effectiveness in "protecting and achieving a level of salmonid productivity and/or habitat function consistent with the conservation of the listed salmonids").

(110) Recently, King County announced that due to "important legal, economic, and political developments [that] have occurred at the local, state and federal levels," it would not be submitting its portion of the Tri-County Proposal to NMFS for approval. Press Release, King County, 2002 Endangered Species Act (ESA) Policy Direction (Apr. 26, 2002), available at http://www.metrokc.gov/exec/news/2002/0426022.htm. Ostensibly, the "important" legal and political developments were the Alsea Valley decision, and, as mentioned in the news release, the fact that "NMFS is reviewing the fundamental decision of whether to continue to list Puget Sound chinook salmon and other salmonids on the West Coast as threatened species." Id.

(111) SALMON INFORMATION CENTER, TRI-COUNTY WATERSHED (WRIA) PLANNING FRAMEWORK: OVERVIEW, at http://www.salmoninfo.org/tricounty/tcWRIAplanning.htm (last visited July 19, 2003); WASH. ADMIN. CODE [section] 173-500-040 (2003).

(112) WASH. ADMIN. CODE [section] 173-500-990 (2003).

(113) For instance, King County has lead responsibility for the development of Water Resource Inventory Area plans for WRIA 8 (Cedar/Sammamish Watershed) and WRIA 9 (the Green/Duwamish Watershed). KING COUNTY, WA., KING COUNTY COMPREHENSIVE PLAN 2000, CHAPTER 4: ENVIRONMENT, II. ENDANGERED SPECIES ACT (2001), available at http://www.metrokc.gov/ddes/compplan/2000/#esa. In addition, King County is supporting the planning efforts in WRIA 7 (the Snohomish/Snoqualmie Watershed), about half of which is in King County, and WRIA 10 (the White/Puyallup Watershed), a small percentage of which is in King County. Id.

(114) Press Release, King County, Tri-County ESA Partnership Highlights Successes; Completing Final Salmon Recovery Plan (Jan. 4, 2001), at http://www.metrokc.gov/exec/news/2001/0104011.htm.

(115) SALMON INFORMATION CENTER, SUMMARY OF TRI-COUNTY MODEL 4(D) PROPOSAL: LAND MANAGEMENT, at http://www.salmoninfo.urg/tricounty/0104011_4dsumm.htm (last visited July 19, 2003).

(116) Id.

(117) Id. The Management Zone is the area of critical habitat where localities will more closely review development proposals to ensure they are consistent with the 4(d) rule MRCI limit criteria, do not take fish, and do not preclude future recovery opportunities. Id. The proposal contains a complicated chart listing the management zones based on water criteria. Id. For purposes of the MRCI portion of the proposal, a "site" is defined as "the area upon which the development activity is occurring and any adjacent area under common ownership which may be affected by the development activity." Id. Further, the proposal counsels developers and landowners on how "to determine whether any portion of a site is within a management zone subject to the proposal." The proposal also suggests that local jurisdictions "require applicants for development permits to submit a 'site plan' which delineates all water bodies (streams, lakes, marine waters [and] wetlands) and other critical areas on the site or located within 200 horizontal feet outside of the site boundaries." SALMON INFORMATION CENTER, TRI-COUNTY MANAGEMENT ZONE: PROPOSAL FOR THE MODEL 4(D) RULE: APPLICABILITY, at http://www.salmoninfo.org/tricounty/mzone/applicability.htm (last visited July 19, 2003).

(118) SALMON INFORMATION CENTER, TRI-COUNTY MANAGEMENT ZONE: PROPOSAL FOR THE MODEL 4(D) RULE: SITE-SPECIFIC HABITAT EVALUATION, at http://www.salmoninfo.org/tricounty/mzone/site.htm (last visited July 19, 2003).

(119) SALMON INFORMATION CENTER, TRI-COUNTY MANAGEMENT ZONE: PROPOSAL FOR THE MODEL 4(D) RULE: FIXED DEVELOPMENT REGULATIONS, at http://www.salmoninfo.org/tricounty/mzone/fixed.htm (last visited July 19, 2003).

(120) SALMON INFORMATION CENTER, TRI-COUNTY MANAGEMENT ZONE: PROPOSAL FOR THE MODEL 4(D) RULE: MANAGEMENT ZONE, at http://www.salmoninfo.org/tricounty/mzone/manage.htm (last visited July 19, 2003).

(121) See infra Part IV.A.

(122) See infra Part IV.B. Developers' first challenge to the 4(d) rule was, not surprisingly, a challenge under the Administrative Procedures Act (APA), 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000), claiming that the MRCI limit was too vague, and thus arbitrary and "doomed to fail." However, U.S. District Judge Barbara Rothstein upheld the development limit as a valid exercise of NMFS's discretion. K