Alsea Valley Alliance v. Department of Commerce

Oregon Natural Resources Council and several other organizations (collectively Council) appeal from an order invalidating a National Marine Fisheries Service (Service) final rule and remanding to the Service for further consideration (Remand Order). The order that allowed the Council to intervene for purposes of bringing this appeal (Intervention Order) is challenged by Alsea Valley Alliance (Alsea), and opposed by the government on jurisdictional grounds, in a separately docketed companion case. We lack jurisdiction over both appeals, and accordingly we dismiss them.

I.

Acting under authority derived from the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544 , and pursuant to several of its own policies, the Service promulgated a final rule designating as “threatened” the “naturally spawned” populations of Oregon coast “Evolutionarily Significant Unit” (ESU) coho salmon, but excluding “hatchery spawned” populations from the “threatened” listing. See Threatened Status for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon, 63 Fed. Reg. 42,587 (Aug. 10, 1998) (to have been codified at 50 C.F.R. pt. 227 (redesignated as pt. 223)). Alsea brought suit in federal…