IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ALSEA VALLEY ALLIANCE, and )

MARK SEHL, ) Case No. 99-6265-HO

 )

Plaintiffs, )

 ) ORDER

v. )

 )

CARLOS M. GUTTIEREZ, Secretary )

of the United States Department )

of Commerce; NATIONAL MARINE )

FISHERIES SERVICE; WILLIAM T. )

HOGARTH, NMFS Director; and )

D. ROBERT LOHN, NMFS Regional )

Director for the Northwest )

Region, )

 )

Defendants. )

________________________________)

Plaintiffs seek to set a briefing schedule to address, by way

of declaratory judgment, whether the federal defendants' notice of

final administrative determination on remand complied with this

court's remand order to consider the best scientific information,

including the most recent data, in any further listing decisions

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concerning the Oregon coast coho salmon. Upon remand, the National

Marine Fisheries Service (NMFS) withdrew its proposal to list the

Oregon coast evolutionary significant unit of coho salmon under the

Endangered Species Act (ESA).

A group of environmental and conservation organizations, some

of whom have previously intervened in this suit, sent NMFS a notice

of intent to challenge the new decision. Parties who had

intervened in this action, as well as others, filed a complaint

alleging that "NMFS's decision to base its listing on Oregon's

viability analysis runs counter to ESA's best available science

mandate and the evidence in the record." Plaintiffs have not given

notice of intent to challenge the decision and indeed have not

challenged the new decision.

The new challenge involves a new final agency action based on

a separate administrative record. Plaintiffs cast the new

challenge to the new decision as a dispute regarding whether NMFS

complied with this court's remand order. However, this case has

been terminated and judgement was entered on September 12, 2001.

There are no issues to be decided regarding the original complaint

in this case and plaintiffs have already received the judgment they

sought. There is nothing for the court to declare based on the

complaint in this case and, in fact, plaintiffs do not contend they

are injured by NMFS's decision subsequent to the remand.

The court does not have jurisdiction in this case to decide

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issues raised by other parties in a related case. To the extent

plaintiffs seek to protect the new decision, they can intervene in

the case in which the new decision has been challenged by those who

do assert injury.

The challenge to the new decision is pending before Magistrate

Judge Stewart in a separate case. See Trout Unlimited v. Lohn, 06-

1493-ST (D. Or.). Magistrate Judge Stewart denied a motion to

consolidate that action with a similar case involving plaintiff

Alsea Valley Alliance. In addition, Alsea Valley Alliance has been

granted intervention in Trout Unlimited. Allowing plaintiffs to

seek a declaratory judgment in this case provides a risk of

inconsistent judicial rulings regarding the same subject matter.

As part of the remand, NMFS established a new hatchery policy

in accordance with this court's direction. NMFS chose not to list

Oregon coast coho for reasons unrelated to the hatchery policy.

NMFS based its new decision on a new viability analysis performed

by the State of Oregon. That decision has been challenged, in the

Trout Unlimited case, raising a different set of issues than

previously raised in this case. Alsea has challenged decisions

implementing the new hatchery policy in other cases where NMFS did

make a listing decision. See, e.g., Alsea Valley Alliance v.

Lautenbacher, 06-6093-HO (D. Or.). Thus, plaintiffs have numerous

opportunities to properly assert their interests.

In sum, plaintiffs, seek an advisory opinion over a subject

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for which this court lacks jurisdiction in a case which may not

afford all interested parties an opportunity to assert their

interests. While it would be helpful to have the same court review

decisions related to previous cases, the court cannot disregard

jurisdictional requirements in the name of efficiency. Plaintiffs'

request to set a briefing schedule so that plaintiffs may seek

declaratory relief regarding NMFS's final determination that the

Oregon coast coho salmon do not warrant a listing as threatened or

endangered is denied.

Dated this 17th day of May, 2007.

 s/ Michael R. Hogan 

UNITED STATES DISTRICT JUDGE

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