Humane Society of the United States v. Gutierrez

Ninth Circuit

Humane Society of the United States v. Gutierrez

558 F.3d 896, 2009 U.S. App. LEXIS 5744

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 26, 2009

Docket08-36038

StatusPublished

Cited by2 cases

This text of 558 F.3d 896 (Humane Society of the United States v. Gutierrez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Humane Society of the United States v. Gutierrez, 558 F.3d 896, 2009 U.S. App. LEXIS 5744 (9th Cir. 2009).

Pincite

Opinion

ORDER

Appellants challenge the decision of the National Marine Fisheries Service (“NMFS”) to authorize the states of Oregon, Washington and Idaho to lethally remove certain California sea lions preying on endangered or threatened salmon and steelhead fish at the Bonneville Dam (“NMFS Approval”).

Appellants move for a stay of the NMFS Approval pending appeal. Appellees oppose the motion.

A party seeking a stay must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of relief, that the balance of equities tip in his favor, and that a stay is in the public interest. See Winter v. Natural Resources Defense Council, Inc., — U.S. -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008).

Appellants challenge the NMFS Approval under the Administrative Procedure Act (“APA”). The APA requires a reviewing court to set aside agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We have held that review under the arbitrary and capricious standard “is narrow, and [we do] not substitute [our] judgment for that of the agency.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) *897 (en banc) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006)).

Given the narrow and deferential standard of review, and the district court’s well-reasoned decision granting summary judgment to appellees, we conclude that appellants have not met their burden of demonstrating a likelihood of success on the merits. They therefore fail to meet the threshold for a stay pending appeal. Accordingly, appellants’ motion is denied.

The briefing schedule established previously shall remain in effect.

Free access — add to your briefcase to read the full text and ask questions with AI

ORDER

Appellants challenge the decision of the National Marine Fisheries Service (“NMFS”) to authorize the states of Oregon, Washington and Idaho to lethally remove certain California sea lions preying on endangered or threatened salmon and steelhead fish at the Bonneville Dam (“NMFS Approval”).

Appellants move for a stay of the NMFS Approval pending appeal. Appellees oppose the motion.

A party seeking a stay must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of relief, that the balance of equities tip in his favor, and that a stay is in the public interest. See Winter v. Natural Resources Defense Council, Inc., — U.S. -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008).

Appellants challenge the NMFS Approval under the Administrative Procedure Act (“APA”). The APA requires a reviewing court to set aside agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We have held that review under the arbitrary and capricious standard “is narrow, and [we do] not substitute [our] judgment for that of the agency.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) *897 (en banc) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006)).

Given the narrow and deferential standard of review, and the district court’s well-reasoned decision granting summary judgment to appellees, we conclude that appellants have not met their burden of demonstrating a likelihood of success on the merits. They therefore fail to meet the threshold for a stay pending appeal. Accordingly, appellants’ motion is denied.

The briefing schedule established previously shall remain in effect.

Cite This Page — Counsel Stack

Bluebook (online)

558 F.3d 896, 2009 U.S. App. LEXIS 5744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/humane-society-of-the-united-states-v-gutierrez-ca9-2009.

Opinion

Related

Cite This Page — Counsel Stack