The Wilderness Society Alaska Center for the Environment v. United States Fish & Wildlife Service

360 F.3d 1374

The WILDERNESS SOCIETY; Alaska Center for the Environment, Plaintiffs-Appellants,
v.
UNITED STATES FISH & WILDLIFE SERVICE, Defendant-Appellee.

No. 01-35266.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 16, 2003 — San Francisco, California.

Filed December 30, 2003.

Amended March 16, 2004.

Rebecca L. Bernard and Jack K. Sterne, Trustees for Alaska, Anchorage, Alaska, for the plaintiffs-appellants.

Kathryn E. Kovacs, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CV-98-00409-JKS.

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson, Stephen Reinhardt, Thomas G. Nelson, Michael Daly Hawkins, Barry G. Silverman, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Marsha S. Berzon, and Richard R. Clifton, Circuit Judges.

1

Opinion by Judge Gould.

ORDER

2

Defendant-appellee's Petition for Rehearing En Banc Regarding Remedy is GRANTED.

3

The opinion of the en banc court in this case, Wilderness Society v. United States Fish and Wildlife Serv., 353 F.3d 1051 (9th Cir.2003), is amended as follows:

4

In Section IV of the en banc court's opinion, 353 F.3d at 1070, after the paragraph concluding "[p]laintiffs were entitled to gain a final judgment enjoining operation of the Tustumena Lake Sockeye Salmon Enhancement Project," insert a new paragraph that reads:

5

"On remand, the scope of immediate injunctive relief is submitted to the discretion of the District Court. The District Court shall have discretion, upon an adequate showing of justification, to fashion the injunction so as to accommodate a resolution with respect to this year's batch, and this year's batch only, of six million sockeye salmon fry from Bear Creek that are currently in the CIAA's Trail Lakes hatchery. See Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 740 (9th Cir.2001)."

6

IT IS SO ORDERED.