ALASKA v. LUBCHENCO

Nos. 12-35201, 12-35203, 12-35204.

723 F.3d 1043 (2013)

State of ALASKA, Plaintiff-Appellant, and Freezer Longline Coalition; 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, 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; Freezer Longline Coalition, Plaintiffs, and 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, 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 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, 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 capacity as United States Secretary of Commerce, Defendants-Appellees, Oceana; Greenpeace Inc., Intervenor-Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed July 23, 2013.


Attorney(s) appearing for the Case

Bradley E. Meyen and Andrew R. Naylor , Assistant Attorneys General, State of Alaska, Department of Law, Anchorage, AK; Murray D. Feldman , Holland & Hart LLP, Boise, ID; Christina F. Gomez , Holland & Hart LLP, Denver, CO, for Plaintiff-Appellant State of Alaska.

Linda R. Larson (argued) and Jessica K. Ferrell , Marten Law PLLC, Seattle, WA, for Plaintiffs-Appellants Alaska Seafood Cooperative, et al.

Ryan P. Steen and Jeffrey W. Leppo , Stoel Rives LLP, Seattle, WA, for Plaintiff-Appellant Freezer Longline Coalition.

Ignacia S. Moreno , Assistant Attorney General, Dean Dunsmore, John H. Martin , Daniel Pollak , Joan M. Pepin , and J. David Gunter II (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees Jane Lubchenco, et al.

Colin C. O'Brien (argued), Earthjustice, Anchorage, AK; Shawn Eisele and Eric P. Jorgensen , Earthjustice, Juneau, AK, for Intervenor-Appellees Oceana, Inc. and Greenpeace, Inc.

Before: MARY M. SCHROEDER, M. MARGARET McKEOWN, and RICHARD C. TALLMAN, Circuit Judges.


OPINION

SCHROEDER, Circuit Judge:

The western Distinct Population Segment of the Steller sea lions ("wDPS") live in the great northern Pacific Ocean region off Alaska, and they were declared endangered in 1997. More recently, in two of the seven sub-regions they inhabit, they have been experiencing population declines because they have been showing signs of nutritional stress. In 2010, the National Marine Fisheries Service ("NMFS" or "the agency") therefore...

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