## Facts

- The National Marine Fisheries Service (NMFS) issued a 1998 final rule listing the Oregon Coast evolutionarily significant unit (ESU) of coho salmon as a “threatened” species under the Endangered Species Act (ESA).
- NMFS determined that naturally spawning and hatchery-origin coho salmon on the Oregon Coast belonged to the same distinct population segment (DPS), referred to as an ESU under NMFS policy.
- Despite that determination, NMFS listed only the naturally spawning component as threatened and excluded most hatchery fish from the listing, relying on its hatchery policy that generally prioritized natural populations.
- Alsea Valley Alliance and Mark Sehl sued under the Administrative Procedure Act (APA), alleging the selective listing was unlawful and arbitrary and capricious.
- The parties filed cross-motions for summary judgment.

## Issues

1. Whether the ESA permits NMFS to list as “threatened” only the naturally spawning portion of a DPS/ESU while excluding hatchery fish that NMFS considers part of the same DPS/ESU.
2. Whether NMFS’s selective listing decision was arbitrary, capricious, or not in accordance with law under the APA.

## Decision

- The court granted plaintiffs’ motion for summary judgment and denied defendants’ cross-motion.
- The court held that because NMFS determined hatchery and natural coho were part of the same DPS/ESU, the ESA did not permit NMFS to draw listing distinctions within that unit based on hatchery versus natural origin.
- The court concluded the listing decision was arbitrary and capricious and contrary to the ESA.
- The court vacated the 1998 final rule listing the Oregon Coast coho ESU as threatened.

## Legal Principles

- Once an agency defines a DPS/ESU for ESA purposes, that unit is the relevant “species” for listing, and the agency may not subdivide it to list only a subset.
- Listing distinctions “below” the level of a DPS are not authorized by the ESA when the excluded organisms are part of the same DPS as the included organisms.
- An agency acts arbitrarily and capriciously when it adopts an internally inconsistent position—treating hatchery fish as part of the DPS for defining the unit, but excluding them from the listing without statutory authorization.
- The ESA’s definition of “conservation” expressly includes propagation, undermining an agency rationale that effectively disregards hatchery populations within a defined DPS when making listing determinations.

## Conclusion

The court vacated NMFS’s threatened listing for Oregon Coast coho because NMFS defined hatchery and natural fish as a single DPS/ESU yet listed only the natural component, an unauthorized subdivision that rendered the rule arbitrary and capricious under the APA and inconsistent with the ESA.


Alsea Valley All. v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001)