Federal Judge in Seattle finds he lacks jurisdiction over hatchery dispute along Cedar River
Glasser v. National Marine Fisheries Service, Case 2:06-cv-00561-BHS, Document 80 (July 17, 2008)
Photo of stretch of the Cedar River, by Seattle Public Utilities, available online at the Habitat Conservation Plan info pages.
OPINION (by U.S. District Court Judge Benjamin H. Settle): "While the Court is concerned about the protection of threatened or endangered species, especially local salmon, it is without jurisdiction to hear Plaintiff’s claims because Plaintiff has failed to establish that she has standing to bring this action. Accordingly, Defendants’ Motions for Summary Judgment (Dkts. 74 and 75) are granted and Plaintiff’s Supplemental Complaint (Dkt. 54) is dismissed."
BACKGROUND: On April 20, 2006, Plaintiff filed a complaint against Defendant National Marine Fisheries Service (“NMFS”) and Defendant D. Robert Lohn, Regional Administrator of the National Oceanic and Atmospheric Administration (collectively “federal Defendants”) challenging the Endangered Species Act exemption granted by [NMFS] for the City of Seattle’s . . . construction and operation of a sockeye hatchery in the Cedar River watershed without imposing necessary conditions to prevent the hatchery from adversely impacting the survival and recovery of Puget Sound Chinook salmon, a species listed under the ndangered Species Act and Steelhead Trout, a species recently proposed for listing under the ndangered Species Act... After this action was filed, the City of Seattle asked NMFS to amend the Incidental Take Permit to remove coverage for the unlisted Cedar River sockeye stock and for both the interim sockeye hatchery and the planned permanent sockeye hatchery. 72 Fed. Reg. 33977 (June 20, 2007).
EXCERPT: Plaintiff claims that she has been injured in two ways: (1) the taking authorized by the permit affects her enjoyment of the endangered species and (2) she has a strong interest in seeing that Defendants comply with the procedural obligations of the Endangered Species Act and the National Environmental Policy Act... The Ninth Circuit has “long recognized that failure to follow procedures designed to ensure that the environmental consequences of a project are adequately evaluated is a sufficient injury in fact to support standing.” City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975)...(defendants did not prepare an environmental impact statement, as outlined in the National Environmental Policy Act, on the effects of the proposed freeway interchange... and the creation of a risk that serious environmental impacts will be overlooked is itself a sufficient ‘injury in fact’ to support standing)
ON ALLEGED PROCEDURAL INJURIES: In this case, Plaintiff claims that “The procedural duties of the ndangered Species Actand the ational Environmental Policy Act. . . provide the basis for standing.” Dkt. 76 at 5. NMFS’s action, however, does not involve the environmental consequences of a particular project. The action removed the City of Seattle’s protection for construction of both the interim and the permanent sockeye hatcheries. Without that protection, Plaintiff is free “to sue Seattle for allegedly taking ndangered Cedar Riverchinook through operation of the ockeyehatcheries.” Dkt. 74 at 14. NMFS’s action in this case is arguably the exact opposite of the federal agency’s inaction that injured the plaintiff in the Coleman case... Plaintiff may be injured if NMFS amended the permit a second time to include the sockeye hatcheries without following the proper procedures. Plaintiff, however, has failed to show that she suffered a “procedural injury implicit” in NMFS’s alleged failure to follow proper procedures in amending the City of Seattle’s incidental take permit to exclude coverage for the sockeye hatcheries. Plaintiff’s reliance on Coleman is misplaced based on the facts of this case.
ON ALLEGED INJURY THAT WAS "FAIRLY TRACEABLE" TO THE ACTION: The City of Seattle requested, and NMFS granted, the removal of the sockeye hatcheries from the City of Seattle’s incidental take permit. Thus, the City of Seattle lost its protection for, or exclusion under the Endangered Species Act for, the take (defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect”) of endangered species due to construction of or operation of the sockeye hatcheries. Based on the current status quo, Plaintiff’s argument is hard to follow.
ON REDRESSABILITY: In other words, Plaintiff argues that the amended permit may subsequently be issued as-is, but NMFS should be required to comply with the applicable law during consideration of that hypothetical re-issue. The Supreme Court “has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Allen v. Wright, 468 U.S. 737, 754 (1984). Plaintiff’s request that NMFS act in accordance with the law is not an issue that can be redressed by a favorable decision from this Court.