Ocean Conservancy, Inc. v. National Marine Fisheries Service

*1160 ORDER

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 seatur-tle “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 Long-line 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 In an unpublished disposition, we dismissed the appeal with instructions.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…