United Cook Inlet Drift Ass'n v. Nmfs

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2020
• Docket: 20-35029
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED COOK INLET DRIFT No. 20-35029 ASSOCIATION; COOK INLET FISHERMEN'S FUND, D.C. No. 3:13-cv-00104-TMB

Plaintiffs-Appellants, MEMORANDUM* v.

NATIONAL MARINE FISHERIES SERVICE; et al.,

Defendants-Appellees,

STATE OF ALASKA,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, Chief District Judge, Presiding

Argued and Submitted May 12, 2020 San Francisco, California

Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation. 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

2 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 (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.

AFFIRMED.