NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILD FISH CONSERVANCY, a No. 23-35322 Washington non-profit corporation, D.C. No. 2:20-cv-00417-RAJ Plaintiff-Appellee,

v. MEMORANDUM*

JENNIFER QUAN, in her official capacity as Regional Administrator of the National Marine Fisheries Service; et al.,

Defendants,

ALASKA TROLLERS ASSOCIATION,

Intervenor-Defendant,

and

STATE OF ALASKA,

Intervenor-Defendant- Appellant.

WILD FISH CONSERVANCY, a No. 23-35323 Washington non-profit corporation, D.C. No. 2:20-cv-00417-RAJ Plaintiff-Appellee,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.

JENNIFER QUAN, in her official capacity as Regional Administrator of the National Marine Fisheries Service; et al.,

Defendants,

STATE OF ALASKA,

Intervenor-Defendant,

and

ALASKA TROLLERS ASSOCIATION,

Intervenor-Defendant- Appellant.

WILD FISH CONSERVANCY, a No. 23-35324 Washington non-profit corporation, D.C. No. 2:20-cv-00417-RAJ Plaintiff-Appellant,

v.

JENNIFER QUAN, in her official capacity as Regional Administrator of the National Marine Fisheries Service; et al.,

Defendants-Appellees,

and

ALASKA TROLLERS ASSOCIATION;

STATE OF ALASKA,

Intervenor-Defendants-

2 Appellees.

WILD FISH CONSERVANCY, a No. 23-35354 Washington non-profit corporation, D.C. No. 2:20-cv-00417-RAJ Plaintiff-Appellee,

v.

JENNIFER QUAN, in her official capacity as Regional Administrator of the National Marine Fisheries Service; et al.,

Defendants-Appellants,

and

ALASKA TROLLERS ASSOCIATION;

STATE OF ALASKA,

Intervenor-Defendants.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted July 18, 2024 San Francisco, California

Before: M. SMITH, BENNETT, and JOHNSTONE, Circuit Judges.

The National Marine Fisheries Service (“Service”) issued a biological

opinion in 2019 (“2019 Opinion”) addressing how certain federal actions would

affect endangered Southern Resident killer whales (“Whales”) and several

threatened populations of Chinook salmon. The Service concluded that the

3 proposed actions complied with the Endangered Species Act (“ESA”). The Wild

Fish Conservancy (“Conservancy”) challenged the 2019 Opinion in federal district

court, claiming that the Service had violated the ESA, Administrative Procedure

Act (“APA”), and National Environmental Policy Act (“NEPA”).

In August 2022, the district court held that the Service erred in: 1) issuing an

incidental take statement that authorized the southeastern Alaska troll fishery to

harvest Chinook salmon despite a potential reduction in prey for the Whales, and

2) approving a program that funded Chinook salmon hatcheries to increase prey for

the Whales. The Service accepted the merits decision of the district court and

began preparing a new biological opinion.

In May 2023, the district court issued its decision on the proper remedies

pending remand, vacating the take statement but not the prey increase program.

The parties cross-appealed those decisions. We have jurisdiction under 28 U.S.C.

§ 1291. We review the district court’s equitable decision regarding whether to

remand without vacatur for abuse of discretion. See Pit River Tribe v. U.S. Forest

Service, 615 F.3d 1069, 1080 (9th Cir. 2010). We reverse the district court’s

vacatur of the take statement and affirm its decision not to vacate the prey increase

program.1 Because the parties are familiar with the facts, we do not recount them

1 The Service and two intervenors, the State of Alaska and the Alaska Trollers Association, moved this Court to stay the district court’s order vacating the take

4 here, except as necessary to provide context to our ruling.

1. The district court abused its discretion by vacating the take statement’s

authorization of the troll fishery’s summer and winter Chinook salmon harvests.

Although vacatur of unlawful agency actions is the “presumptive remedy under the

APA,” 350 Montana v. Haaland, 50 F.4th 1254, 1273 (9th Cir. 2022) (citing

Alliance for the Wild Rockies v. U.S. Forest Service, 907 F.3d 1105, 1121-22 (9th

Cir. 2018)), courts remand without vacatur “when equity demands,” Idaho Farm

Bureau Federation v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995). This equitable

determination requires courts to apply the Allied-Signal test, weighing: 1) the

seriousness of the agency’s errors, against 2) the disruptive consequences of

vacatur. Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (per

curiam) (citing Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146,

150-51 (D.C. Cir. 1993)).

The district court held that the Service committed serious ESA and NEPA

violations when it issued the take statement in 2019. In particular, the court found

that the Service violated the ESA by relying on “uncertain and indefinite

mitigation” from the prey increase program in evaluating and issuing the take

statement. But the court disregarded the likelihood that the take statement would be

statement. A motions panel granted the stay in June 2023, restoring the take statement pending the outcome of this appeal.

5 supported by better reasoning, and readopted, on remand. See Pollinator

Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015). As the court

recognized elsewhere, the prey increase program—previously “uncertain and

indefinite”—had been running for more than three years and had generated “a

certain and definite increase in prey” by the time the court issued its remedies

decision. Thus, the district court erred by ignoring that the agency’s errors,

although serious, were unlikely to affect the substance of the decision adopted on

remand. See id.; Ctr. for Food Safety v. Regan, 56 F.4th 648, 664 (9th Cir. 2022)

(evaluating whether “an agency is likely to be able to offer better reasoning and

adopt the same rule on remand”).

Turning to the second Allied-Signal factor, the district court erred by

overlooking the severe disruptive consequences of vacatur. Even the

Conservancy’s experts conceded that vacating the take statement would lead to

millions of dollars of losses for Alaskan fishermen and their communities. The

district court, however, glossed over these significant economic consequences, as

well as the downstream social and cultural harms to fishing villages and Alaska

Natives. Cf. Cal. Cmtys., 688 F.3d at 993-94 (remanding without vacatur to avoid

“economically disastrous” results and protect a “venture employing 350 workers”).

In contrast, the Conservancy’s expert recognized that there was “considerable

uncertainty” about how the troll fishery affected prey availability and projected

6 that precluding the fishery from harvesting Chinook salmon would lead to only

minor benefits for the Whales in any given year. But the district court nevertheless

found that vacatur would lead to an “uncertain” but “meaningful” benefit for the

Whales, and it emphasized that vacatur was required because of the “presumption

of vacatur” and its “mandate” to protect the Whales and “tip the scale” in their

favor. That analysis improperly predetermined the outcome of the Allied-Signal

test by double-counting the Service’s ESA violation as both a serious error and a

substantive consideration that superseded the disruptive consequences of vacatur.

2. The district court did not abuse its discretion by remanding without

vacating the prey increase program. The court held that the Service committed

serious ESA and NEPA violations but was “poised” to remedy its ESA missteps

and incorporate the results of site-specific NEPA reviews in a new biological

opinion. Although this does not ameliorate the Service’s initial errors in preparing

the 2019 Opinion, it again suggests that “the agency [will] likely be able to offer

better reasoning” and “adopt the same [program] on remand.” Pollinator

Stewardship, 806 F.3d at 532.

As to the disruptive consequences of vacatur, the district court found that

vacating the prey increase program would lead to negative environmental

consequences because the program provided an important, targeted source of prey

for the Whales. The court also found that vacatur would threaten the resumption of

7 the program even after the Service issued a new biological opinion, and that

vacatur would disrupt unrelated fisheries and federal actions. In view of those

significant disruptions and “possible environmental harm[s],” id., the district court

did not abuse its discretion by concluding that the disruptive consequences of

vacating the prey increase program outweighed the seriousness of the Service’s

errors.

3. The Service has repeatedly committed to fixing its errors and completing

a new biological opinion before December 1, 2024. At oral argument, the Service

assured this Court that it could not “imagine what would happen that would derail”

the biological opinion and that it was “committed to completing the documents”

before December 1, 2024. In light of the agency’s representation that any delay is

beyond the realm of imagination, this Court expects the Service to adhere to its

deadline. The equitable considerations that sometimes justify remand without

vacatur would be significantly altered if courts could not rely on agencies to act

promptly on remand.

8 *

The district court’s remedies order is REVERSED IN PART, as to the take

statement (appealed at Nos. 23-35322, 23-35323, and 23-35354); AFFIRMED IN

PART, as to the prey increase program (appealed at No. 23-35324); and the case is

REMANDED WITHOUT VACATUR to the Service.2

2 The motions for leave to file briefs as amicus curiae at No. 23-35322, Docket Nos. 72 (Southeast Alaska Native Coalition); 74 (SalmonState); 75 (Washington State Department of Fish and Wildlife); 77 (Alaska Congressional Delegation); 94 (Law of the Wild, Orca Conservancy, and Wild Orca); 97 (Law Professors); 98 (The Conservation Angler, Native Fish Society, Umpqua Watersheds, and Snake River Waterkeeper); and 99 (Raincoast Conservation Foundation, SkeenaWild Conservation Trust, Watershed Watch Salmon Society, David Suzuki Foundation, Georgia Strait Alliance, Pender Ocean Defenders, and Saturna Island Marine Research and Education Society) are GRANTED.

The Conservancy’s motion for judicial notice at No. 23-35322, Docket No. 90 is

DENIED.

9