Hui Malama I Kohola v. National Marine Fisheries Service

FILED
NOT FOR PUBLICATION JUN 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUI MALAMA I KOHOLA; CENTER No. 09-17545
FOR BIOLOGICAL DIVERSITY;
TURTLE ISLAND RESTORATION D.C. No. 1:09-cv-00112-DAE-
NETWORK, BMK
Plaintiffs - Appellants,
MEMORANDUM *
v.
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES
DEPARTMENT OF COMMERCE;
GARY LOCKE, Secretary of the
Department of Commerce,
Defendants - Appellees,
HAWAII LONGLINE ASSOCIATION,
Defendant-intervenor -
Appellee.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 13, 2011 **
Honolulu, Hawaii
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.
Plaintiffs Hui Malama I Kohola, the Center for Biological Diversity, and
Turtle Island Restoration Network appeal the district court’s grant of the
defendants’ motions for summary judgment. As the parties agree, this appeal is
moot in light of the National Marine Fisheries Service’s (NMFS’s) establishment
of a take reduction team for the Hawaii pelagic stock of false killer whales and
subsequent submission of a draft take reduction plan. See 16 U.S.C. § 1387(f)(3),
(6)(A), & (7)(A)(i); see also Church of Scientology of California v. United States,
506 U.S. 9, 12 (1992).
No exception to mootness applies. As NMFS has formed a take reduction
team, the dispute over whether it should do so is not likely to recur, and so this is
not a case that is “capable of repetition, yet evading review.” See American Rivers
v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123-24 (9th Cir. 1997).
Similarly, the voluntary cessation exception does not apply, because the formation
of the team and submission of a draft plan have “made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur” and “have
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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completely and irrevocably eradicated the effects of the alleged violation.” Porter
v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007) (quoting Los Angeles County v.
Davis, 440 U.S. 625, 631 (1979)). There are no collateral continuing legal
disputes.
“When a civil case becomes moot pending appellate adjudication, ‘[t]he
established practice . . . is to reverse or vacate the judgment below and remand
with a direction to dismiss.’” Arizonans for Official English v. Arizona, 520 U.S.
43, 71-72 (1997) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39
(1950)). “Vacatur expunges an adverse decision that would be reviewable had this
case not become moot.” Camreta v. Greene, 131 S. Ct. 2020, 2035 n.10 (citing
Arizonans, 520 U.S. at 74). NMFS alone possesses the authority to establish a take
reduction team; the plaintiffs did not cause mootness through voluntary action. See
United States v. Payton, 593 F.3d 881, 884-85 (9th Cir. 2010) (quoting U.S.
Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994)). We therefore
vacate the judgment below, remand, and direct the district court to dismiss this
action. See Arizonans, 520 U.S. at 71-72.
The judgment is VACATED and the case is REMANDED.
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