UNITED COOK INLET DRIFT ASSOCIATION v. State of Alaska, Intervenor-Defendant-Appellee. (2020)
United States Court of Appeals, Ninth Circuit.
UNITED COOK INLET DRIFT ASSOCIATION; Cook Inlet Fishermen's Fund, Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE; et al., Defendants-Appellees, State of Alaska, Intervenor-Defendant-Appellee.
Decided: May 29, 2020
Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,* District Judge.
Beth S. Ginsberg, Attorney, Jason T. Morgan, Attorney, Ryan P. Steen, Attorney, Stoel Rives LLP, Seattle, WA, for Plaintiffs - Appellants Travis Annatoyn, Trial Attorney, Democracy Forward Foundation, Washington, DC, Coby Howell, DOJ-USAO, Portland, OR, Ellen Durkee, Attorney, DOJ - U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants - Appellees Aaron Christian Peterson, Assistant Attorney General, Laura Wolff, Assistant Attorney General, AGAK - Office of the Alaska Attorney General, Anchorage, AK, for Intervenor-Defendant - Appellee
United Cook Inlet Drift Association and Cook Inlet Fishermen's Fund (collectively “UCIDA”) appeal the district court's order denying in part and granting in part UCIDA's motion to enforce judgment against Defendants-Appellees, National Marine Fisheries Service, et al. (collectively “NMFS”). We affirm.
1. The district court properly exercised its discretion when it imposed a deadline by which the Council must adopt a recommendation for referral to NMFS. The district court found there was no evidence of intentional delay and set a date certain—December 31, 2020—for the Council to adopt a recommendation of the final federal salmon fishery management plan (“FMP”) amendment, with “final agency action and/or promulgation of a final rule [to] occur within one year thereafter.” This is a reasonable requirement a court may impose on an agency while it is deliberating on remand. See Nat'l Wildlife Fed. v. NMFS, 524 F.3d 917, 937 (9th Cir. 2008). Accordingly, the district court struck the appropriate balance between imposing a permissible “procedural restriction” and refraining from imposing an impermissible “substantive restraint.” Id. at 937-38; see also Alaska Ctr. For Env't v. Browner, 20 F.3d 981, 986-87 (9th Cir. 1994).
The district court also correctly concluded that the UCIDA's argument that NMFS is considering only FMP alternatives that would violate the “letter and spirit of the decision” in United Cook Inlet Association v. National Marine Fisheries Service, 837 F.3d 1055 (9th Cir. 2016), is premature as there has been no final agency action to review. The North Pacific Fishery Management Council is currently preparing a recommended proposal of the FMP and NMFS must ultimately decide whether to accept or reject the proposed FMP. Neither this Court's decision in United Cook, nor any relevant statute, required the district court to intervene in the administrative process, before the final agency action, to set deadlines and mandate the contents of the FMP amendment. See 16 U.S.C. § 1855(f)(1); 5 U.S.C. § 706(2); see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 164, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) (“Until such time as the agency decides whether and how to exercise its regulatory authority, however, the courts have no cause to intervene.”).
2. The district court also did not abuse its discretion when it declined to order interim relief for the commercial fishery. Neither United Cook nor the parties’ agreed-upon district court judgment discussed or required interim relief or the special master appointment. And even if the district court did have the authority to grant interim relief, it did not abuse its discretion by declining to do so before NMFS approved the final FMP.
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