Ramsey

This ease raises several questions of statutory interpretation involving the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), and the way in which the two statutory schemes interact.

First, we must decide whether the issuance of an incidental take statement under § 7 of the ESA may in appropriate circumstances permit parties that are neither federal agencies nor applicants to engage in incidental takes consistent with the statement without applying for section 10 permits. We answer this question in the affirmative and conclude that Oregon and Washington were not required to obtain section 10 permits in order to issue regulations governing the harvest of in-river salmon.

Next, we must decide whether the promulgation of an incidental take statement by a federal agency constitutes major federal action for purposes of NEPA. We hold that in this case it does, because the issuance of the statement is a prerequisite to the states’ adoption of the fishing regulations at issue. Thus we conclude that the National Marine Fisheries Service was required, in accordance with the provisions of NEPA, to prepare an Environmental Assessment (EA), and possibly an…