ELR Citation: 54 ELR 20122
No(s). 23-35322 (9th Cir. Aug 16, 2024)

In an unpublished opinion, the Ninth Circuit reversed a lower court's vacatur of an incidental take statement (ITS) issued by NMFS authorizing a troll fishery in Alaska to harvest Chinook salmon despite potential reduction in prey for the endangered southern resident killer whale, and affirmed its decision not to vacate the Service's approval of a program funding Chinook salmon hatcheries to increase prey for the whale. An environmental group had challenged NMFS' 2019 biological opinion, arguing the Service had violated the ESA and NEPA. The appellate court found the district court abused its discretion by vacating the authorization of the fishery's Chinook salmon harvests because the ESA and NEPA errors, although serious, were unlikely to affect the substance of the decision adopted on remand; but that the court did not abuse its discretion by concluding that the disruptive consequences of vacating the prey increase program outweighed the seriousness of NMFS' errors. It reversed in part, affirmed in part, and remanded without vacatur to NMFS.