No. 95-35471.

96 F.3d 434 (1996)

James A. RAMSEY; Elf Atochem North America; Aluminum Company of America; Columbia Aluminum Corporation; Columbia Falls Aluminum Company; Kaiser Aluminum & Chemical Corporation; Intalco Aluminum Corporation; Northwest Aluminum Company; Reynolds Metals Company; Vanalco, Inc., Plaintiffs-Appellants, v. Mickey KANTOR, in his official capacity as Secretary of Commerce; United States Department of Commerce; National Marine Fisheries Service; Pacific Fishery Management Council; Phillip Anderson, in his official capacity as Chairman of the Pacific Fisheries Management Council; North Pacific Fisheries Management Council; Richard B. Lauber, in his official capacity as Chairman of North Pacific Fisheries Management Council; Bruce Babbitt, in his official capacity as the Secretary of the Interior; U.S. Fish & Wildlife; State of Oregon; Rod Ingram, in his official capacity as Acting Director of the Oregon Department of Fish and Wildlife; State of Alaska; Carl L. Rosier, in his official capacity as Commissioner of the Alaska Department of Fish & Game; State of Washington; Robert Turner, in his official capacity as Director of the Washington Department of Fisheries, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Decided September 19, 1996.

Attorney(s) appearing for the Case

Jacob Tanzer, Ball, Janik, & Novack, Portland, Oregon, for plaintiffs-appellants.

J. Carol Williams, United States Department of Justice, Washington, DC, for federal defendants-appellees.

Stephanie L. Striffler, Assistant Attorney General, Salem, Oregon, for defendant-appellee State of Oregon.

T. Henry Wilson, III, Assistant Attorney General, Anchorage, Alaska, for defendant-appellee State of Alaska.

Robert K. Costello, Assistant Attorney General, Olympia, Washington, for defendant-appellee State of Washington.


REINHARDT, Circuit Judge:

This case 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...


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