No. 02-35761.

371 F.3d 475 (2004)

Will ANDERSON; Fund for Animals; Humane Society of the United States; Australians for Animals; Cetacean Society International; West Coast Anti-Whaling Society; Sandra Abels; Cindy Hansen; Patricia Ness; Robert Ness; Lisa Lamb; Margaret Owens; Charles Owens; Peninsula Citizens for the Protection of Whales; Dan Spomer; Sue Miller; Steph Dutton, Plaintiffs-Appellants, v. Donald EVANS, Secretary, U.S. Department of Commerce; Conrad Lautenbacher, Administrator, National Oceanic and Atmospheric Administration; William Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service, Defendants-Appellees, Makah Indian Tribe, Defendant-intervenor-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed December 20, 2002.

Amended November 26, 2003.

Second Amendment June 7, 2004.

Attorney(s) appearing for the Case

Eric R. Giltzenstein and Kimberly D. Ockene, Meyer & Glitzenstein, Washington, D.C., for the plaintiffs-appellants.

Robert H. Oakley, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for the defendant-intervenor-appellee.

Before: HILL, GOULD and BERZON, Circuit Judges.

Opinion by Judge BERZON for sections I and II; Opinion by Judge GOULD for sections III and IV.


The panel majority opinion, as amended, appearing at 350 F.3d 815 (9th Cir.2003), is AMENDED as follows:

On Page 844, in Part IV, after the sentence that ends "they must do so before any taking of a marine mammal", insert the following footnote:

In connection with petitions for rehearing en banc, the Appellees...

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