Pursuant to 16 U.S.C. § 1533(d),
"The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title . . . except that with respect to the taking of resident species of fish or wildlife, such regulations shall apply in any state which has entered into a cooperative agreement pursuant to section 1535(c) of this title only to the extent that such regulations have also been adopted by such State."
As set forth above, there is no case to be made that Rogue River coho are threatened (likely to become endangered), much less endangered. To the extent that the case for a listing as "threatened" is weak to begin with (with even the BRT agreeing there is no risk of extinction that would warrant an "endangered" listing), the case for acting pursuant to 16 U.S.C. § 1533(d) to provide draconian prohibitions against take (except for salmon harvest and hatchery operation) is weaker still. Put another way, where a "species" is not "endangered", the Secretary must have discernible reasons for extending the protections of the ESA to that "species", reasons that it is especially important to review when the "species" definition is one subject to "abuse". The Secretary offered no such reasons, an abused his discretion.
Yet another indicator that NMFS acted arbitrarily and capriciously is that NMFS expressly found that all fishing activities would not jeopardize SONC coho. 62 Fed. Reg. 38,479, 38,481(July 18, 1997). This means NMFS found that the killing of 15% of the run would not "reduce appreciably the likelihood of both the survival and recovery of the listed species". 50 C.F.R. § 402.02 (definition of jeopardize). NMFS offers no coherent explanation why it exercised its discretion to prohibit other forms of take while allowing the largest take, harvest, to go essentially unregulated by Federal law.
Finally, although the District has yet to commence discovery into NMFS' listing decision, the Federal Register notice suggests that NMFS has executed a "Memorandum of Agreement" concerning Oregon's Coastal Salmon Restoration Initiative". 62 Fed. Reg. at 38,479. NMFS presumably took this action pursuant to its authority to enter into such cooperative agreements pursuant to 16 U.S.C. § 1535(c). But the very existence of such a programacknowledged by NMFS to represent the basis for allowing incidental take through harvest and hatchery operations (62 Fed. Reg. at 38,480)means that NMFS can apply its § 4(d) regulation "only to the extent that such regulations have also been adopted by" Oregon. 16 U.S.C. § 1533(d). Oregon has, to the best of the District's knowledge, not adopted any incidental take regulations concerning Rogue River coho. Nor would it; Oregon's biologists testify that the fish are not likely to become endangered at all.
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