Kahea; Food & Water Watch, Inc. v. National Marine Fisheries Service

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAHEA; FOOD & WATER WATCH,
INC.,
Plaintiffs - Appellants,
v.
NATIONAL MARINE FISHERIES
SERVICE; MICHAEL D. TOSATTO,
Regional Administrator of the National
Marine Fisheries Service, Pacific Islands
Regional Office; SAMUEL D. RAUCH
III, Assistant Administrator of the
National Marine Fisheries Service;
PENNY PRITZKER, Secretary of
Commerce,
Defendants - Appellees.
No. 12-16445
D.C. No. 1:11-cv-00474-SOM-
KSC
MEMORANDUM *
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted October 8, 2013
Honolulu, Hawaii
Before: KOZINSKI, Chief Judge, FISHER and WATFORD, Circuit Judges.
FILED
OCT 29 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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page 2
1. Food & Water Watch, Inc. (FWW) sufficiently alleged causation and
redressability to demonstrate standing. FWW’s members’ concerns are causally
connected to the special permit issued by National Marine Fisheries Service
(NMFS), and would have been redressed if the permit had been denied. See San
Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 700 (9th Cir.
2012); Renee v. Duncan, 623 F.3d 787, 797–98 (9th Cir. 2010).
2. The special permit issued to Kona Blue wasn’t de facto rule making. The
special permit was expressly limited in scope, use and duration, and wasn’t
transferrable. The permit has now expired and wasn’t “an agency statement of
general or particular applicability” with “future effect designed to implement,
interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).
3. Even if deference under the standard in Chevron isn’t appropriate,
NMFS’s actions were lawful when reviewed using Skidmore deference. United
States v. Mead Corp., 533 U.S. 218, 228 (2001). NMFS has the authority under
the Magnuson-Stevens Fishery Conservation and Management Act to issue the
fishing permit to Kona Blue. 16 U.S.C. §§ 1801(a)(6), (b)(1); 1853(b)(1). NMFS
may review and issue special permits for proposals to fish “with any gear not
normally permitted,” and under NMFS’s “generally conferred authority,”

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“Congress would expect [NMFS] to be able to speak” to whether Kona Blue’s
requested activity was permitted. Mead, 533 U.S. at 229.
4. A claim is moot where there is no longer a “live” controversy such that
there can’t be any effective relief. Cantrell v. Long Beach, 241 F.3d 674, 678 (9th
Cir. 2001). Although the National Environmental Policy Act claim is no longer a
live controversy, the “capable of repetition yet evading review” exception to the
mootness doctrine applies. Ctr. for Biological Diversity v. Lohn, 511 F.3d 960,
965 (9th Cir. 2007). The claim fits both criteria necessary to meet the exception:
(1) A “reasonable expectation” exists that FWW will be subject to the same alleged
injury due to Kona Blue’s intended second permit application, and (2) the alleged
injury is “inherently limited in duration” such that it will likely become moot
before any subsequent federal litigation is completed. Id. (internal quotations
omitted). This claim is remanded to the district court.
AFFIRMED IN PART, REVERSED & REMANDED IN PART.
NO COSTS.

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