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State of Alaska v. Lubchenco

United States Court of Appeals, Ninth Circuit

October 16, 2013

State of Alaska, Plaintiff-Appellant,
v.
Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, [*] Defendants-Appellees, and Freezer Longline Coalition; Alaska Seafood Cooperative; the Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; the Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington limited liability companies; FCA Holdings, Inc., an Alaska corporation;O'Hara Corporation, a Maine corporation; AK Victory, Inc., a Washington corporation, Plaintiffs, Oceana; Greenpeace Inc., Intervenor-Defendants- Appellees. State of Alaska; Freezer Longline Coalition, Plaintiffs, and Alaska Seafood Cooperative; the Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington limited liability companies; FCA Holdings, Inc., an Alaska corporation; O'Hara Corporation, a Maine corporation; AK Victory, Inc., a Washington corporation, Plaintiffs-Appellants,
v.
Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants-Appellees, Oceana; Greenpeace Inc., Intervenor-Defendants- Appellees. State of Alaska; Alaska Seafood Cooperative; the Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; the Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC;Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington limited liability companies; FCA Holdings, Inc., an Alaska corporation; O'Hara Corporation, a Maine corporation; AK Victory, Inc., a Washington corporation, Plaintiffs, and Freezer Longline Coalition, Plaintiff-Appellant,
v.
Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her officialcapacity as United States Secretary of Commerce, Defendants-Appellees, Oceana; Greenpeace Inc., Intervenor-Defendants- Appellees.

D.C. Nos. 3:10-cv-00271-TMB 3:11-cv-00001-TMB 3:11-cv-00004-TMB

Before: Mary M. Schroeder, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.

ORDER AMENDING OPINION

The Opinion filed July 23, 2013, appearing at 723 F.3d 1043, is amended as follows:

1. At slip op. 10, in the fifth sentence of the third full paragraph; 723 F.3d at 1048, line 1, delete "will not" and insert "[are] not likely to" before "jeopardize."
2. At slip op. 11, in the second sentence of the second full paragraph; 723 F.3d at 1048, line 4 of the second full paragraph, delete "do not jeopardize" and replace with "are not likely to jeopardize."
3. At slip op. 24, in the second sentence of the first full paragraph; 723 F.3d at 1054, line
7 of the first full paragraph, delete "jeopardizing" and replace with "likely to jeopardize."
4. At slip op. 27, in the first sentence of the second full paragraph; 723 F.3d at 1055, line 2 of the fifth full paragraph, insert "likely" before "jeopardize."

With these amendments, the panel has voted to deny appellants' petition for panel rehearing. Judges McKeown and Tallman have voted to deny the petition for rehearing en banc, and Judge Schroeder has so recommended.

The full court has been advised of appellants' petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

Appellants' petition for panel rehearing and petition for rehearing en banc are denied. Further petitions for rehearing and rehearing en banc shall not be entertained.


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