June 6: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-16245 and 09-16796. Appealed from the United States District Court for the Northern District of California. In brief summary the Appeals Court indicated that West Coast Seafood Processors Association (WCSPA) appealed from the district court's denial of its motion to intervene as a defendant in the case, in which the Natural Resources Defense Council, Inc., and Pacific Marine Conservation Council, Inc. (together, NRDC) challenged the National Marine Fisheries Service's (NMFS) program to preserve groundfish species off the coast of California, Oregon, and Washington. In a split decision, the Appeals Court ruled simply that, "Because the litigation between NRDC and NMFS has ended, we dismiss WCSPA's appeal as moot."
Ruling on one aspect of the case, the majority Appeals Court said, "It is not reasonable to expect that this dispute about timeliness will arise again. The hybrid Groundfish Plan/Specifications litigation is over. Although NRDC will likely challenge future Specifications and WCSPA will likely file future motions to intervene, the timeliness issue, which is the subject of this appeal, will not likely reappear (as it did not appear in any of the other cases in which the NRDC challenged earlier Specifications and in which WCSPA successfully intervened), unless the same unlikely, hybrid scenario develops again over the next decade. Such a speculative possibility does not constitute a 'reasonable expectation.'"
In a lengthy dissenting opinion, one justice ruled, ". . .I conclude the case survives mootness because it falls in the 'capable of repetition, yet evading review' exception to mootness. I would thus reach the merits of the appeal and reverse." He said further, "
I conclude that this case falls within the 'capable of repetition, yet evading review' exception to mootness. This exception applies if two requirements are met: '(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.' Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). The present case meets both of these requirements."
Access the complete opinion (click here). [*Wildlife, CA9]
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