Ocean Conservancy v. National Marine Fish. Serv.

• Decision Date: 13 September 2004
• Docket Number: No. 02-17290.,02-17290.
• Citation: Ocean Conservancy v. National Marine Fish. Serv., 382 F.3d 1159 (9th Cir. 2004)
• Parties: The OCEAN CONSERVANCY, INC.; Turtle Island Restoration Network; Center for Biological Diversity, Plaintiffs-Appellants, Hawaii Longline Association, Intervenor-Appellee, v. NATIONAL MARINE FISHERIES SERVICE; United States Department of Commerce; Donald L. Evans, Secretary of the Department of Commerce, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1159

382 F.3d 1159

The OCEAN CONSERVANCY, INC.; Turtle Island Restoration Network; Center for Biological Diversity, Plaintiffs-Appellants Hawaii Longline Association, Intervenor-Appellee, v. NATIONAL MARINE FISHERIES SERVICE; United States Department of Commerce; Donald L. Evans, Secretary of the Department of Commerce, Defendants-Appellees.

No. 02-17290.

United States Court of Appeals, Ninth Circuit.

September 13, 2004.

Appeal from the United States District Court for the District of Hawaii, Alan C. Kay, J.

David Henkin, Paul H. Achitoff, Esq., Honolulu, HI, for Plaintiffs-Appellants.

Steven Y. Otaguro, Lyons, Hagerman & Brandt, Honolulu, HI, for Intervenor-Appellee.

Laurie K. Beale, Stoel Rives LLP., Katherine W. Hazard, Esq., Seattle, WA, Thomas L. Sansonetti, Katherine W. Hazard, Esq., Washington, DC, Defendants-Appellees.

Before JAMES R. BROWNING, REINHARDT, and THOMAS, Circuit Judges.

ORDER

PER CURIAM.

The Ocean Conservancy, Inc., Turtle Island Restoration Network, and the Center for Biological Diversity (collectively, "Ocean Conservancy") filed a lawsuit seeking to prevent the National Marine Fisheries Service ("NMFS") from authorizing scientific research into methods that might reduce the amount of endangered seaturtle "bycatch" during longline fishing. Ocean Conservancy disputes the wisdom of this research, which would itself be accompanied by turtle bycatch. The district court below denied Ocean Conservancy's request for a preliminary injunction against conducting the research, and Ocean Conservancy appealed. Defendant National Marine Fisheries Service ("NMFS") and Intervenor Hawaii Longline Association ("HLA") moved to dismiss the appeal as moot. In an unpublished disposition, we dismissed the appeal with instructions. Ocean Conservancy, Inc. v. Nat'l Marine Fisheries Serv., 90 Fed. Appx. 499 (9th Cir.2003). NMFS and HLA now move for costs on appeal, arguing that they are entitled to costs under Federal Rule of Appellate Procedure 39(a)(1). We deny the motions because they are wholly without merit.

I. Background

Litigation in this case began after NMFS issued Permit 1303 to its Office of Sustainable Fisheries to "take" a specified number of sea turtles, incidental to research on various longline fishing techniques that might reduce turtle bycatch when compared to traditional longline fishing techniques. The experimental and control fishing techniques that would be tested under the Permit would inevitably lead to turtle bycatch, and Ocean Conservancy challenged the research under the substantive and procedural provisions of the Endangered Species Act ("ESA"). 16 U.S.C. §§ 1531-44 (2000).

Although the district court found Ocean Conservancy likely to prevail on at least one of its claims, it denied a preliminary injunction against the research due to unusual circumstances. However, it ordered NMFS to conduct an Environmental Impact Statement ("EIS") by July 31, 2003 and to serve the court and parties monthly status reports on both the EIS and the research, the second phase of which was to begin in December 2003. It enjoined NMFS from modifying or accelerating the research in any way from what was described in Permit 1303.

Ocean Conservancy appealed interlocutorily, 28 U.S.C. § 1292(a)(1), and this court temporarily enjoined the research pending appeal. In the meantime, NMFS requested an extension of time to file the EIS, until October 1, 2003, and the district court granted this request. NMFS withdrew Permit 1303, and HLA moved for a stay of the proceedings in the district court on the merits, which the district court granted pending the outcome of this appeal, finding that there was no way in which the research could proceed in the meantime.

NMFS therefore moved to dismiss the appeal as moot, arguing that it would not, indeed could not, reissue Permit 1303 or any other Permit authorizing the research until after completion of the EIS and a new Biological Opinion. However, it reasserted its "commitment" to beginning research in December 2003. By the time we heard the appeal November 3, 2003, NMFS had missed its October 1, 2003 deadline to complete the EIS, but continued to interpret the district court's orders to prohibit research until an EIS and a new Biological Opinion and Permit were completed.

In an unpublished disposition, we construed the district court's orders, combined with NMFS's representations, to mean that the appeal from the denial of a preliminary injunction was moot, and dismissed with instructions. Ocean Conservancy, 2003 WL 23109904. However, we took care to "clarify that no longline fishing research may be conducted out of Hawaii until (1) an EIS is prepared; (2) a new Biological Opinion is prepared that takes into account the EIS; and (3) a new permit is issued based on the new Biological Opinion." Id. at *2. Moreover, we did not vacate the district court's orders "because they serve[d] to maintain the status quo" pending resolution of the merits of the case. Id. We also provided instructions that if a new Biological Opinion and Permit were issued, Ocean Conservancy would be permitted to amend its complaint in district court. Id.

II. Analysis

NMFS and HLA argue that they are entitled to costs under Federal Rule of Appellate Procedure 39(a)(1), but their argument has no merit. When an appeal is dismissed, the appellee is usually entitled to costs under this Rule, but not if the "law provides ... otherwise" or "the court orders otherwise." Fed. R.App. P. 39(a). In this case, the law provides otherwise because the ESA overrides Rule 39. Even if it did not, we would order otherwise.

Under the ESA, courts issuing final orders may award "costs," including fees, to either party, where appropriate. 16 U.S.C. § 1540(g)(4) (2000). We have previously held that statutory costs and fee provisions such as that found in the ESA override Federal Rule of Civil Procedure 54(d), which allocates costs in the district court to the prevailing party. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1190(9th Cir.2001) (...