State of Alaska v. Lubchenco

Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF ALASKA, No. 12-35201 Plaintiff-Appellant,

D.C. Nos.

and 3:10-cv-00271-TMB 3:11-cv-00001-TMB

FREEZER LONGLINE COALITION; 3:11-cv-00004-TMB ALASKA SEAFOOD COOPERATIVE; THE GROUNDFISH FORUM; ALASKA GROUNDFISH COOPERATIVE; CASCADE FISHING, INC.; M/V SAVAGE INC.; OCEAN PEACE, INC.; THE FISHING COMPANY OF ALASKA, INC.; ALASKA JURIS, INC.; ALASKA SPIRIT, INC., Washington corporations; UNITED STATES SEAFOODS, LLC; ALASKA ALLIANCE, LLC; ALASKA LEGACY, LLC; SEAFREEZE ALASKA 1, LLC; ALASKA VAERDAL, LLC; IQUIQUE U.S., LLC; UNIMAK VESSEL, LLC; CAPE HORN VESSEL, LLC; REBECCA IRENE VESSEL, LLC; TREMONT VESSEL, LLC; ARICA VESSEL, LLC, Washington limited liability companies; FCA HOLDINGS, INC., an Alaska corporation;

2 STATE OF ALASKA V. LUBCHENCO

O’HARA CORPORATION, a Maine corporation; AK VICTORY, INC., a Washington corporation, Plaintiffs,

v.

JANE LUBCHENCO, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; NATIONAL MARINE FISHERIES SERVICE; JAMES W. BALSIGER, in his official capacity as NMFS Alaska Region Administrator; PENNY PRITZKER, in her official capacity as United States Secretary of Commerce,* Defendants-Appellees,

OCEANA; GREENPEACE INC., Intervenor-Defendants–

Appellees.

*

*

Secretary of Commerce Penny Pritzker is substituted for her predecessor, Gary Locke, pursuant to Federal Rule of Appellate Procedure 43(c)(2).

STATE OF ALASKA V. LUBCHENCO 3

STATE OF ALASKA; FREEZER No. 12-35203 LONGLINE COALITION, Plaintiffs, D.C. Nos.

3:10-cv-00271-TMB

and 3:11-cv-00001-TMB 3:11-cv-00004-TMB

ALASKA SEAFOOD COOPERATIVE; THE GROUNDFISH FORUM; ALASKA GROUNDFISH COOPERATIVE; CASCADE FISHING, INC.; M/V SAVAGE INC.; OCEAN PEACE, INC.; THE FISHING COMPANY OF ALASKA, INC.; ALASKA JURIS, INC.; ALASKA SPIRIT, INC., Washington corporations; UNITED STATES SEAFOODS, LLC; ALASKA ALLIANCE, LLC; ALASKA LEGACY, LLC; SEAFREEZE ALASKA 1, LLC; ALASKA VAERDAL, LLC; IQUIQUE U.S., LLC; UNIMAK VESSEL, LLC; CAPE HORN VESSEL, LLC; REBECCA IRENE VESSEL, LLC; TREMONT VESSEL, LLC; ARICA VESSEL, LLC, Washington limited liability companies; FCA HOLDINGS, INC., an Alaska corporation; O’HARA CORPORATION, a Maine corporation; AK VICTORY, INC., a Washington corporation, Plaintiffs-Appellants, 4 STATE OF ALASKA V. LUBCHENCO

v.

JANE LUBCHENCO, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; NATIONAL MARINE FISHERIES SERVICE; JAMES W. BALSIGER, in his official capacity as NMFS Alaska Region Administrator; PENNY PRITZKER, in her official capacity as United States Secretary of Commerce, Defendants-Appellees,

OCEANA; GREENPEACE INC., Intervenor-Defendants– Appellees.

STATE OF ALASKA; ALASKA No. 12-35204 SEAFOOD COOPERATIVE; THE GROUNDFISH FORUM; ALASKA D.C. Nos. GROUNDFISH COOPERATIVE; 3:10-cv-00271-TMB CASCADE FISHING, INC.; M/V 3:11-cv-00001-TMB SAVAGE INC.; OCEAN PEACE, 3:11-cv-00004-TMB INC.; THE FISHING COMPANY OF ALASKA, INC.; ALASKA JURIS, ORDER INC.; ALASKA SPIRIT, INC., AMENDING Washington corporations; OPINION UNITED STATES SEAFOODS, LLC; ALASKA ALLIANCE, LLC; ALASKA LEGACY, LLC;

STATE OF ALASKA V. LUBCHENCO 5

SEAFREEZE ALASKA 1, LLC; ALASKA VAERDAL, LLC; IQUIQUE U.S., LLC; UNIMAK VESSEL, LLC; CAPE HORN VESSEL, LLC; REBECCA IRENE VESSEL, LLC; TREMONT VESSEL, LLC; ARICA VESSEL, LLC, Washington limited liability companies; FCA HOLDINGS, INC., an Alaska corporation; O’HARA CORPORATION, a Maine corporation; AK VICTORY, INC., a Washington corporation, Plaintiffs,

and

FREEZER LONGLINE COALITION, Plaintiff-Appellant,

v.

JANE LUBCHENCO, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; NATIONAL MARINE FISHERIES SERVICE; JAMES W. BALSIGER, in his official capacity as NMFS Alaska Region Administrator; PENNY PRITZKER, in her official 6 STATE OF ALASKA V. LUBCHENCO

capacity as United States Secretary of Commerce, Defendants-Appellees,

OCEANA; GREENPEACE INC., Intervenor-Defendants– Appellees.

Filed October 16, 2013

Before: Mary M. Schroeder, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.

ORDER

The Opinion filed July 23, 2013, appearing at 723 F.3d 1043, is amended as follows:

1. At slip op. 10, in the fifth sentence of the third full paragraph; 723 F.3d at 1048, line 1, delete “will not” and insert “[are] not likely to” before “jeopardize.”

2. At slip op. 11, in the second sentence of the second full paragraph; 723 F.3d at 1048, line 4 of the second full paragraph, delete “do not jeopardize” and replace with “are not likely to jeopardize.”

3. At slip op. 24, in the second sentence of the first full paragraph; 723 F.3d at 1054, line

STATE OF ALASKA V. LUBCHENCO 7

7 of the first full paragraph, delete “jeopardizing” and replace with “likely to jeopardize.”

4. At slip op. 27, in the first sentence of the second full paragraph; 723 F.3d at 1055, line 2 of the fifth full paragraph, insert “likely” before “jeopardize.”

With these amendments, the panel has voted to deny appellants’ petition for panel rehearing. Judges McKeown and Tallman have voted to deny the petition for rehearing en banc, and Judge Schroeder has so recommended.

The full court has been advised of appellants’ petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

Appellants’ petition for panel rehearing and petition for rehearing en banc are denied. Further petitions for rehearing and rehearing en banc shall not be entertained.