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Ocean Conservancy, Inc. v. National Marine Fisheries Service



The Ocean Conservancy, in conjunction with several other environmental organizations (collectively Conservancy), brought suit to stop the National Marine Fisheries Service (NMFS) from conducting scientific research that would have resulted in the taking of endangered sea turtles, thereby violating the Endangered Species Act (ESA).[1] The district court denied a preliminary injunction and Conservancy appealed. After the appeal was dismissed, NMFS and an intervening fishery organization, the Hawaii Longline Association (HLA), moved for costs. The Ninth Circuit held that costs should not be awarded.

In an attempt to limit turtle bycatch, NMFS proposed to conduct research into methods other than traditional longline fishing. The research itself, however, was anticipated to result in the taking of turtles under the ESA.[2] The district court denied a preliminary injunction, but ordered NMFS to prepare an environmental impact statement (EIS) by July 31, 2003.

Conservancy appealed and the Ninth Circuit temporarily enjoined the research. Meanwhile, NMFS requested an extension of the EIS deadline. Because NMFS conceded that it could not conduct the challenged research before the completion of the EIS, it moved to dismiss the appeal as moot. In an unpublished opinion, the Ninth Circuit dismissed the appeal as moot, but issued instructions with its order. These instructions prohibited longline fishing research until the EIS and a new Biological Opinion were completed. The instructions also provided that if NMFS did issue a new research permit in accordance with the instructions, Conservancy would be permitted to amend its complaint. NMFS and HLA moved for costs under Federal Rule of Appellate Procedure 39(a)(1).[3]

The Ninth Circuit first pointed out that Rule 39(a)(1) awards costs unless the “law provides . . . otherwise.”[4] The court noted, by way of analogy, that the ESA has been found to override Federal Rule of Civil Procedure 54(d) allocating costs to the prevailing party. Thus, because the ESA awards costs “where appropriate” the Ninth Circuit held that the federal law should override Rule 39.[5] The Ninth Circuit determined that costs were not appropriate here because costs are appropriate only if the litigation is frivolous.[6] The court decided Conservancy’s litigation was not frivolous because it likely resulted in mooting the case, thereby suspending NMFS’s research until an EIS was completed. This suspension was a large part of the relief sought by the Conservancy.[7]

Moreover, the Ninth Circuit had dismissed the appeal with instructions essentially enjoining the research NMFS wished to pursue. These factors led the court to conclude that, although the appeal was dismissed, Conservancy appeared to be the prevailing party.[8] Thus, the Ninth Circuit denied NMFS’s motion for costs because Conservancy’s suit was not frivolous.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] Id. § 1532(19).

[3] Fed. R. App. P. 39(a)(1).

[4] Id.

[5] 16 U.S.C. § 1540(g)(4) (2000).

[6] Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1094 (9th Cir. 1999).

[7] Ocean Conservancy, Inc. v. Nat’l Marine Fisheries Serv. 382 F.3d 1159, 1162 (9th Cir. 2004).

[8] Id.

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