## Facts

- Environmental organizations challenged the National Marine Fisheries Service’s (NMFS) decision not to list the Oregon Coast evolutionarily significant unit (ESU) of coho salmon as threatened or endangered under the Endangered Species Act (ESA).
- NMFS had conducted a status review and proposed listing the Oregon Coast ESU as threatened based on population decline and ongoing threats.
- Before finalizing the listing decision, NMFS considered the Oregon Coastal Salmon Restoration Initiative (the Oregon Plan), a state conservation effort.
- NMFS issued a final determination withdrawing the proposed listing and concluding listing was not warranted, relying in significant part on expectations that the Oregon Plan would reverse the ESU’s decline.
- The Oregon Plan depended heavily on voluntary measures and future commitments, with many components contingent on later funding, additional agency actions, or private landowner cooperation, rather than currently enforceable restrictions.
- The case was transferred to the District of Oregon and decided on cross-motions for summary judgment by plaintiffs, federal defendants, and the State of Oregon as intervenor.

## Issues

1. Whether NMFS may decline to list a species based substantially on a state conservation plan that is largely voluntary, not fully implemented, and lacking enforceable regulatory mechanisms.
2. Whether NMFS violated the ESA requirement that listing determinations be made solely on the basis of the best scientific and commercial data available.
3. Whether NMFS adequately addressed the ESA listing factor concerning the inadequacy of existing regulatory mechanisms when finding listing unwarranted.

## Decision

- The court granted plaintiffs’ motion for summary judgment and denied the federal defendants’ and the State’s cross-motions.
- The court set aside NMFS’s decision not to list the Oregon Coast ESU of coho salmon.
- The court held NMFS acted contrary to the ESA and arbitrarily and capriciously under the Administrative Procedure Act (APA) by relying on unimplemented, largely voluntary state measures and by not basing the determination on best available scientific data.
- The court required NMFS to proceed in a manner consistent with ESA listing procedures and the court’s interpretation of the statutory constraints.

## Legal Principles

- ESA listing decisions must be made “solely on the basis of the best scientific and commercial data available”; agencies may not substitute predictions about future improvements for current data showing decline and risk.
- In evaluating listing factors, “existing regulatory mechanisms” refers to presently operative, enforceable protections; voluntary programs and contingent future actions generally do not qualify as adequate regulatory mechanisms.
- Although the Secretary must consider state conservation “efforts,” the ESA does not permit decisive reliance on speculative or uncertain measures not yet implemented or not legally binding.
- Under the APA, agency action is arbitrary and capricious when it relies on factors outside statutory limits, fails to address key aspects of the problem, or adopts conclusions inconsistent with the record evidence.

## Conclusion

The court invalidated NMFS’s non-listing determination for Oregon Coast coho because it treated an unproven, largely voluntary state conservation plan as a substitute for existing enforceable protections and departed from the ESA’s command that listing decisions rest on the best available scientific evidence of present status and threats.


Or. Nat. Res. Council v. Daley, 6 F. Supp. 2d 1139 (D. Or. 1998)