Wild Fish Conservancy v. Alaska Trollers Association, et al

Docket(#52) Streamlined request [50] Streamlined request for extension of time to file the brief by Appellants Janet Coit, NMFS, Jennifer Quan, Gina M. Raimondo and USDOC in 23-35354, Appellees NMFS, Chris Oliver, Jennifer Quan, Gina M. Raimondo and USDOC in 23-35324 is approved. Amended briefing schedule: First cross appeal brief due 09/15/2023 for Alaska Trollers Association, State of Alaska, Janet Coit, National Marine Fisheries Service, Jennifer Quan, Gina M. Raimondo and United States Department of Commerce. Second brief on cross appeal due 10/16//2023 for Wild Fish Conservancy. Third brief on cross appeal due 11/15/2023 for Alaska Trollers Association, State of Alaska, Janet Coit, National Marine Fisheries Service, Jennifer Quan, Gina M. Raimondo and United States Department of Commerce. Optional cross appeal reply brief is due within 21 days of service of third brief on cross appeal. [12750219] [23-35322, 23-35324, 23-35354, 23-35323] (DR) [Entered: 07/06/2023 06:09 PM]

Docket(#51) The Mediation Questionnaire for this case was filed on 07/06/2023. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[12749820]. [23-35323] (AD) [Entered: 07/06/2023 12:44 PM]

Docket(#50) Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellants Janet Coit, NMFS, Jennifer Quan, Gina M. Raimondo and USDOC in 23-35354, Appellees NMFS, Chris Oliver, Jennifer Quan, Gina M. Raimondo and USDOC in 23-35324. New requested due date is 09/15/2023. [12749586] [23-35354, 23-35322, 23-35323, 23-35324] (Hansen-Young, Thekla) [Entered: 07/06/2023 10:08 AM]

Docket(#49) Filed (ECF) Appellants Janet Coit, NMFS, Jennifer Quan, Gina M. Raimondo and USDOC in 23-35354, Appellees NMFS, Chris Oliver, Jennifer Quan, Gina M. Raimondo and USDOC in 23-35324 Mediation Questionnaire. Date of service: 07/06/2023. [12749577] [23-35354, 23-35322, 23-35323, 23-35324] (Hansen-Young, Thekla) [Entered: 07/06/2023 10:03 AM]

Docket(#48) Filed clerk order: The amicus brief [ # 26 ] submitted by Alaska Congressional Delegation is filed. No paper copies are required. [12740604] [23-35322, 23-35324, 23-35354, 23-35323] (LA) [Entered: 06/21/2023 04:51 PM]

Docket(#47) Filed order (BARRY G. SILVERMAN, RYAN D. NELSON and PATRICK J. BUMATAY): The State of Alaska moves to stay the district courts May 4, 2023 judgment to the extent it vacates the portions of the 2019 Southeast Alaska Biological Opinion (the BiOp) that authorize take of the Southern Resident Killer Whale and Chinook salmon resulting from commercial harvests of Chinook salmon. The Alaska Trollers Association and the federal appellants join that motion. Wild Fish Conservancy moves to enjoin implementation of the portion of the BiOp that pertains to the prey increase program. The motion for leave to file a brief as amicus curiae in support of the States motion to stay (Docket Entry No. [ # 26 ]) is granted. In deciding a motion to stay, we consider four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The motion to stay in part the district courts May 4, 2023 judgment (Docket Entry No. [ # 12723864-2 ]) is granted. A flawed agency rule does not need to be vacated upon remand and instead may be left in place when equity demands. See Cal. Cmties. Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012) (citations omitted). Here, the moving parties have established a sufficient likelihood of demonstrating on appeal that the certain and substantial impacts of the district courts vacatur on the Alaskan salmon fishing industry outweigh the speculative environmental threats posed by remanding without vacatur. See id. (declining to vacate an agency rule in part because doing so would be economically disastrous.). Accordingly, the district courts judgment is stayed to the extent it vacates the portions of the BiOp that authorize take of the Southern Resident Killer Whale and Chinook salmon resulting from commercial harvests of Chinook salmon during the winter and summer seasons of the troll fisheries. The standard for evaluating an injunction pending appeal is similar to that employed by district courts in deciding whether to grant a preliminary injunction. Feldman v. Ariz. Secy of State, 843 F.3d 366, 367 (9th Cir. 2016); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (defining standard for preliminary injunction in district court). The motion for injunctive relief (Docket Entry No. [ # 18 ]) is denied. Plaintiff-appellant has not demonstrated that the district court likely abused its discretion in declining to vacate the prey increase program, particularly in light of the district courts finding that the disruptive consequences of vacatur would ultimately put the whales at further risk of extinction and outweigh the seriousness of the agencys errors. See Ctr. for Food Safety v. Regan, 56 F.4th 648, 668 (9th Cir. 2022) (ordering remand without vacatur in part because the challenged rule maintained enhanced protection of the environmental values at issue). The existing briefing schedule remains in effect. [12740086] [23-35322, 23-35324, 23-35354, 23-35323] (AF) [Entered: 06/21/2023 11:38 AM]

Docket(#46) Added Attorney Chloe Cotton for Amicus Curiae - Pending Southeast Alaska Tribal Coalition, in 23-35322, 23-35323, 23-35324, 23-3535. [12739531] [23-35322, 23-35324, 23-35354, 23-35323] (HH) [Entered: 06/20/2023 04:44 PM]

Docket(#45) Filed (ECF) notice of appearance of Chloe E. Cotton (Sonosky, Chambers, Sachse, Miller, & Monkman, LLP, 51O L Street, Suite 310, Anchorage, AK 99501) for Amicus Curiae - Pending Southeast Alaska Tribal Coalition in 23-35322, 23-35323, 23-35324, 23-35354. Date of service: 06/20/2023. (Party was previously proceeding with counsel.) [12739395] [23-35322, 23-35323, 23-35324, 23-35354] (Cotton, Chloe) [Entered: 06/20/2023 03:38 PM]

Docket(#44) Added Attorney Richard Drake Monkman for Amicus Curiae - Pending Southeast Alaska Tribal Coalition, in cases 23-35322, 23-35323, 23-35324 and 23-35354. [12739326] [23-35322, 23-35324, 23-35354, 23-35323] (HH) [Entered: 06/20/2023 03:08 PM]

Docket(#43) Filed (ECF) notice of appearance of Richard D. Monkman (Sonosky, Chambers, Sachse, Miller & Monkman, LLP, 302 Gold Street, Suite 201, Juneau, AK 99801) for Amicus Curiae - Pending Southeast Alaska Tribal Coalition in 23-35322, 23-35323, 23-35324, 23-35354. Date of service: 06/16/2023. (Party was previously proceeding with counsel.) [12739298] [23-35322, 23-35323, 23-35324, 23-35354] (Monkman, Richard) [Entered: 06/20/2023 02:55 PM]

Docket(#10) The Mediation Questionnaire for this case was filed on 05/16/2023. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[12716824]. [23-35323] (AD) [Entered: 05/16/2023 12:44 PM]

Docket(#9) Added Attorney Thekla Hansen-Young for Appellees NMFS, USDOC, Gina M. Raimondo, Chris Oliver and Jennifer Quan, in case 23-35324. [12716802] [23-35322, 23-35324, 23-35323] (HH) [Entered: 05/16/2023 12:31 PM]

Docket(#8) Filed (ECF) notice of appearance of Thekla Hansen-Young (US Dept of Justice, Environment & Natural Resources Division, PO Box 7415, Washington DC 20044) for Appellees NMFS, Chris Oliver, Jennifer Quan, Gina M. Raimondo and USDOC in 23-35324. Date of service: 05/16/2023. (Party was previously proceeding with counsel.) [12716664] [23-35323, 23-35322, 23-35324] (Hansen-Young, Thekla) [Entered: 05/16/2023 10:30 AM]

Docket(#7) Filed (ECF) Appellant Alaska Trollers Association in 23-35323, Appellee Alaska Trollers Association in 23-35324 Mediation Questionnaire. Date of service: 05/16/2023. [12716617] [23-35323, 23-35322, 23-35324] (Hibbard, Greg) [Entered: 05/16/2023 10:00 AM]

Docket(#6) The Mediation Questionnaire for this case was filed on 05/15/2023. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[12716349]. [23-35323] (AD) [Entered: 05/15/2023 06:44 PM]

Docket(#5) Filed (ECF) Appellant State of Alaska in 23-35322 Mediation Questionnaire. Date of service: 05/15/2023. [12715826] [23-35322, 23-35323, 23-35324] (Wolff, Laura) [Entered: 05/15/2023 01:05 PM]

Docket(#4) Added Attorney Laura Wolff for Appellant State of Alaska in 23-35322 and Appellee State of Alaska in 23-35324. [12713497] [23-35322, 23-35324, 23-35323] (HH) [Entered: 05/10/2023 04:46 PM]

Docket(#3) Filed (ECF) notice of appearance of Laura Wolff (State of Alaska, Department of Law, 1031 W 4th Ave #200, Anchorage, AK 99501) for Appellant State of Alaska in 23-35322, Appellee State of Alaska in 23-35324. Date of service: 05/10/2023. (Party was previously proceeding with counsel.) [12713452] [23-35322, 23-35323, 23-35324] (Wolff, Laura) [Entered: 05/10/2023 04:34 PM]

Docket(#2) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. Setting cross-appeal briefing schedule as follows: Appellant Wild Fish Conservancy Mediation Questionnaire due on 05/16/2023. First cross appeal brief due 08/16/2023 for Alaska Trollers Association and State of Alaska. Second brief on cross appeal due 09/18/2023 for Wild Fish Conservancy. Third brief on cross appeal due 10/18/2023 for Alaska Trollers Association, National Marine Fisheries Service, Chris Oliver, Jennifer Quan, Gina M. Raimondo, State of Alaska, United States Department of Commerce and Wild Fish Conservancy. Optional cross Appeal Reply brief for Wild Fish Conservancy is due within 21 days of service of Third brief on cross appeal. [12712331] [23-35324, 23-35322, 23-35323] (RT) [Entered: 05/09/2023 02:42 PM]

Docket(#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Appellant Alaska Trollers Association Mediation Questionnaire due on 05/16/2023. Transcript ordered by 06/08/2023. Transcript due 07/06/2023. Appellant Alaska Trollers Association opening brief due 08/16/2023. Appellee Wild Fish Conservancy answering brief due 09/18/2023. Appellant's optional reply brief is due 21 days after service of the answering brief. [12712265] (RT) [Entered: 05/09/2023 02:20 PM]