Hui Malama I Kohola v. National Marine Fisheries Service

ORDER **

This appeal has become moot. 1 We remand to the district court with instructions to vacate its earlier decision and to dismiss the case.

At issue is the 2003 decision of the National Marine Fisheries Service (“NMFS”) to classify the Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo and Oceanic Sharks Longline/Setline Fishery (the “Fishery”) as a Category III fishery under the Marine Mammal Protection Act (“MMPA”). However, while this appeal was pending, NMFS issued a new List of Fisheries, reclassifying the fishery as Category I, thus effectively granting appellants the relief sought and rendering their claim for injunctive relief moot. American Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118 , 1123 (9th Cir.1997).

This is not a case that is “capable of repetition, yet evading review.” Id. Although NMFS must annually re-evaluate the List of Fisheries, there is no “reasonable expectation that the plaintiffs will be subjected to the same action again.” Id. at 1124. Rather, the factual underpinnings of this suit have changed in a way such that the basis for the dispute is not likely to recur. NMFS’s 2003 decision to maintain the Fishery’s classification as Category…