Humane Society of the United States v. Gutierrez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HUMANE SOCIETY OF THE UNITED 
STATES; WILD FISH CONSERVANCY;
BETHANIE O’DRISCOLL; ANDREA
KOZIL,
Plaintiffs-Appellants,
v. No. 08-36038
CARLOS M. GUTIERREZ, Secretary
of Commerce; JAMES W. BALSIGER;  D.C. No.
3:08-cv-00357-MO
JAMES LECKY,
Defendants-Appellees, ORDER
WASHINGTON STATE DEPARTMENT OF
FISH AND WILDLIFE; STATE OF
OREGON DEPARTMENT OF FISH AND
WILDLIFE,
Defendants-Intervenors-Appellees.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding

Filed February 26, 2009

Before: Alex Kozinski, Chief Judge, Michael Daly Hawkins
and Ronald M. Gould, Circuit Judges.

ORDER

Appellants challenge the decision of the National Marine
Fisheries Service (“NMFS”) to authorize the states of Oregon,
Washington and Idaho to lethally remove certain California

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2732 HUMANE SOCIETY v. GUTIERREZ
sea lions preying on endangered or threatened salmon and
steelhead fish at the Bonneville Dam (“NMFS Approval”).

Appellants move for a stay of the NMFS Approval pending
appeal. Appellees oppose the motion.

A party seeking a stay must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable
harm in the absence of relief, that the balance of equities tip
in his favor, and that a stay is in the public interest. See Win-
ter v. Natural Resources Defense Council, Inc., ___ U.S. ___,
129 S.Ct. 365, 374, 172 L. Ed. 2d 249 (2008).

Appellants challenge the NMFS Approval under the
Administrative Procedure Act (“APA”). The APA requires a
reviewing court to set aside agency actions found to be “arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). We have held
that review under the arbitrary and capricious standard “is
narrow, and [we do] not substitute [our] judgment for that of
the agency.” Lands Council v. McNair, 537 F.3d 981, 987
(9th Cir. 2008) (en banc) (quoting Earth Island Inst. v. U.S.
Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006)).

Given the narrow and deferential standard of review, and
the district court’s well-reasoned decision granting summary
judgment to appellees, we conclude that appellants have not
met their burden of demonstrating a likelihood of success on
the merits. They therefore fail to meet the threshold for a stay
pending appeal. Accordingly, appellants’ motion is denied.

The briefing schedule established previously shall remain
in effect.
 PRINTED FOR
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