Salmon Spawning & Recovery Alliance v. U.S. Customs and Border Protection

• Court: Court of Appeals for the Federal Circuit
• Decided: December 18, 2008
• Docket: 2007-1444
• Status: Published

Opinion

United States Court of Appeals for the Federal Circuit

2007-1444

SALMON SPAWNING & RECOVERY ALLIANCE, NATIVE FISH SOCIETY and CLARK-SKAMANIA FLYFISHERS,

Plaintiffs-Appellants,

v.

UNITED STATES CUSTOMS AND BORDER PROTECTION, DIRK KEMPTHORNE, Secretary of the Interior, UNITED STATES DEPARTMENT OF THE INTERIOR, UNITED STATES FISH AND WILDLIFE SERVICE, CARLOS GUTIERREZ, Secretary of Commerce, UNITED STATES DEPARTMENT OF COMMERCE, D. ROBERT LOHN, in his official capacity, DEBORAH J. SPERO, in her official capacity, H. DALE HALL, in his official capacity, W. RALPH BASHAM, in his official capacity, and NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL MARINE FISHERIES SERVICE,

Defendants-Appellees.

Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a petition for panel rehearing for defendants-appellees. With him on the petition were Gregory G. Katsas, Assistant Attorney General, and Jeanne E. Davidson, Director.

Svend A. Brandt-Erichsen, Heller Ehrman LLP, of Seattle, Washington, filed a response to the petition for plaintiffs-appellants.

Appealed from: United States Court of International Trade

Judge Judith M. Barzilay United States Court of Appeals for the Federal Circuit

SALMON SPAWNING & RECOVERY ALLIANCE, NATIVE FISH SOCIETY and CLARK-SKAMANIA FLYFISHERS,

Plaintiffs-Appellants, v.

UNITED STATES CUSTOMS AND BORDER PROTECTION, DIRK KEMPTHORME, Secretary of the Interior, UNITED STATES DEPARTMENT OF THE INTERIOR, UNITED STATES FISH AND WILDLIFE SERVICE, CARLOS GUTIERREZ, Secretary of Commerce, UNITED STATES DEPARTMENT OF COMMERCE, D. ROBERT LOHN, in his official capacity, DEBORAH J. SPERO, in her official capacity, H. DALE HALL, in his official capacity, W. RALPH BASHAM, in his official capacity, and NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL MARINE FISHERIES SERVICE,

Appeal from the United States Court of International Trade in case no. 06-00191, Judge Judith M. Barzilay

ON PETITION FOR REHEARING

Before MICHEL, Chief Judge, GAJARSA, Circuit Judge, and YOUNG, District Judge*.

PER CURIAM.

______________________

* The Honorable William G. Young, District Judge, United States District Court for the District of Massachusetts, sitting by designation.

ORDER

Defendants-Appellees (collectively the “United States”) have sought rehearing of

this court’s decision in Salmon Spawning & Recovery Alliance v. United States, 532

F.3d 1338 (Fed. Cir. 2008), for the limited purpose of reconsidering statements made in

this court’s original opinion regarding whether the Court of International Trade may

exercise “supplemental” jurisdiction pursuant to 28 U.S.C. § 1367(a). In response

Plaintiffs-Appellants Salmon Spawning and Recovery Alliance, Native Fish Society, and

Clark-Skamania Flyfishers (collectively “Salmon Spawning”) elected to take no position

on the issue presented by the petition. All parties agree that the relief requested by the

petition would not alter the outcome of the appeal.

IT IS ORDERED THAT:

The petition for rehearing is granted solely so that this court may issue a revised

opinion; and the panel’s previous opinion at 532 F.3d 1338 is withdrawn.

FOR THE COURT

December 18, 2008 /s/ Jan Horbaly Date Jan Horbaly Clerk