United Cook Inlet Drift Ass'n v. Nmfs ( 2020 )

NOT FOR PUBLICATION FILED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.
3