August 12, 2008

Trout Unlimited v. Lohn

By Trout Unlimited v. Lohn

Today the Ninth Circuit dismissed the appeal of Alsea Valley Alliance (represented by PLF) in Trout Unlimited v. Lohn, a case out of the District of Oregon concerning the National Marine Fisheries Service’s 2006 decision to withdraw its proposal to list the Oregon Coast coho under the Endangered Species Act. The district court had ruled in favor of Trout Unlimited and overturned the withdrawal decision, principally on the ground that the Service had not used the best available scientific data in determining that the coho was not likely to become an endangered species in the foreseeable future. In particular, the district court had taken issue with the Service’s reliance upon especially good coho salmon returns from the late 1990s as a basis upon which to extrapolate coho returns into the future.

Both the Alliance and the Service appealed from the judgment. During the pendency of the appeals, the Service completed its remand by listing the coho (while noting in the listing document that, had the agency been allowed to make its determination based upon the full record, and had been given more time to make its decision, the outcome might well have been different). Following the completion of the remand, the Service dismissed its appeal voluntarily. Both Trout Unlimited and the Service moved to dismiss the Alliance’s appeal on the double ground that (1) because a remand decision is appealable only by the agency, if that agency chooses not to maintain an appeal of the decision, no other party may do so, and (2) the Service’s listing of the coho after remand mooted the Alliance’s appeal.

The Alliance vigorously defended against the dismissal motion, arguing that (1) the remand decision was still appealable, notwithstanding the Service’s dismissal of its own appeal, because the remand had been completed, and (2) the listing of the coho after remand did not moot the appeal, because if the appeal proved successful, the appellate court could order the Service to withdraw its remand decision and reinstate its withdrawal decision.

Unfortunately, the Ninth Circuit did not explain its reasoning for the dismissal, save for a citation to Alsea Valley Alliance v. Department of Commerce, a 2004 case holding that a remand decision is not appealable by non-agency parties. But crucially, the Alsea case dealt with an ongoing remand. The Ninth Circuit memorandum decision does not address this distinction.

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