Humane Society of the United States v. Gutierrez , 527 F.3d 788 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUMANE SOCIETY OF THE UNITED 
STATES; WILD FISH CONSERVANCY;
BETHANIE O’DRISCOLL; ANDREA
KOZIL,
Plaintiffs-Appellants,
v.
No. 08-35305
CARLOS M. GUTIERREZ, Secretary
of Commerce; JAMES W. BALSIGER;
JAMES LECKY,
 D.C. No.
3:08-CV-00357-MO
Defendants-Appellees, ORDER
WASHINGTON STATE DEPARTMENT OF
FISH AND WILDLIFE; STATE OF
OREGON DEPARTMENT OF FISH AND
WILDLIFE,
Defendants-Intervenors-
Appellees.

Filed April 23, 2008
Before: Betty B. Fletcher, Raymond C. Fisher and
Richard A. Paez, Circuit Judges.
ORDER
This is an emergency motion for a stay pending appeal of
the district court’s denial of a preliminary injunction and Cir-
cuit Rule 3-3 applies.
Defendants-Intervenors-Appellees States of Washington,
Oregon and Idaho (“States”) received approval under Section
4625
4626 HUMANE SOCIETY v. GUTIERREZ
120 of the Marine Mammal Protection Act (“MMPA”) from
Defendant-Appellee National Marine Fisheries Service
(“NMFS”) to lethally remove individual pinnipeds, specifi-
cally California sea lions, currently preying on salmon below
the Bonneville Dam on the Columbia River (“NMFS Approv-
al”). The NMFS Approval allows the lethal taking of up to 85
California sea lions annually, and is valid until June 30, 2012.
The States anticipate commencing the California sea lion
removal on April 24, 2008.
The district court denied Plaintiff-Appellant Humane Soci-
ety of the United States’s (“HSUS”) request for a preliminary
injunction, finding that, while appellants had a slight edge on
the merits of their case, the balance of harms tipped in favor
of appellees.
Appellants seek an emergency injunction pending appeal to
stay execution of the NMFS Approval. Appellees oppose the
motion for an emergency injunction.
In deciding whether to issue a stay pending appeal, the
court considers “(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.” See Golden Gate Restaurant Ass’n v.
City and County of San Francisco, 512 F.3d 1112, 1115 (9th
Cir. 2008) (citations omitted). This court recognizes that the
issues of likelihood of success and irreparable injury represent
two points on a sliding scale in which the required degree of
irreparable harm increases as the probability of success
decreases. Id.
Three facts inform the court’s analysis of this motion. First,
the lethal taking of the California sea lions is, by definition,
irreparable. This logic also applies to the salmon consumed by
the sea lions. Second, any stay of the NMFS Approval by this
HUMANE SOCIETY v. GUTIERREZ 4627
court at this time will affect only the 2008 salmon run at the
Bonneville Dam, as we expect this case will be resolved on
the merits before next year’s salmon run. Third, all parties
agree that the 2008 salmon run is estimated to be large, indeed
much larger than in the past several years.
Accordingly, we conclude that, with respect to the impact
on the 2008 salmon run, the balance of harms tips in favor of
the appellants. The estimated 2008 salmon run is anticipated
to be 269,000 fish. The NMFS estimates that, if the plans to
remove the sea lions this year do not go forward, the sea lions
may consume between 212 to 2,094 Endangered Species Act-
listed spring Chinook salmon, which the NMFS estimates is
0.3 to 4.4 percent of these protected fish. Appellees thus have
not shown that a stay pending appeal of the NMFS Approval
will result in an irreparable harm to appellees.
The district court found the question of likelihood of suc-
cess on the merits tips slightly in favor of appellants. Accord-
ingly, we hold that appellants have met their burden for a stay
pending appeal. Therefore, appellants’ motion for an emer-
gency injunction pending appeal is granted in part.
The States’ authorized action to manage California sea lion
predation at the Bonneville Dam is stayed to the extent their
proposed actions involve the lethal taking of any sea lions.
However, appellees have stated that they have the ability to
transfer up to 19 California sea lions to zoos and aquaria. The
court does not stay that portion of the NMFS Approval, and
the States may proceed with the capture and relocation of
such California sea lions at this time.
In addition, and consistent with the above discussion, the
court sua sponte expedites this appeal. The parties may stipu-
late to proceed on the briefing already submitted in this
appeal. In the alternative, the parties shall file simultaneous
briefs on the merits. The opening briefs are due in the Clerk’s
4628 HUMANE SOCIETY v. GUTIERREZ
office by May 1, 2008. Response briefs are due in the Clerk’s
office by May 5, 2008.
The Clerk shall calendar this case for oral argument on
May 8, 2008 at 10:00 a.m. in Pasadena, California. The court
anticipates that proceedings on the merits in the district court
meanwhile will go forward pending this appeal.
SO ORDERED.
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