                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 22 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HUI MALAMA I KOHOLA; CENTER                      No. 09-17545
FOR BIOLOGICAL DIVERSITY;
TURTLE ISLAND RESTORATION                        D.C. No. 1:09-cv-00112-DAE-
NETWORK,                                         BMK

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES
DEPARTMENT OF COMMERCE;
GARY LOCKE, Secretary of the
Department of Commerce,

              Defendants - Appellees,

HAWAII LONGLINE ASSOCIATION,

              Defendant-intervenor -
Appellee.



                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              Submitted June 13, 2011 **
                                 Honolulu, Hawaii

Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.

      Plaintiffs Hui Malama I Kohola, the Center for Biological Diversity, and

Turtle Island Restoration Network appeal the district court’s grant of the

defendants’ motions for summary judgment. As the parties agree, this appeal is

moot in light of the National Marine Fisheries Service’s (NMFS’s) establishment

of a take reduction team for the Hawaii pelagic stock of false killer whales and

subsequent submission of a draft take reduction plan. See 16 U.S.C. § 1387(f)(3),

(6)(A), & (7)(A)(i); see also Church of Scientology of California v. United States,

506 U.S. 9, 12 (1992).

      No exception to mootness applies. As NMFS has formed a take reduction

team, the dispute over whether it should do so is not likely to recur, and so this is

not a case that is “capable of repetition, yet evading review.” See American Rivers

v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123-24 (9th Cir. 1997).

Similarly, the voluntary cessation exception does not apply, because the formation

of the team and submission of a draft plan have “made it absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur” and “have


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2
completely and irrevocably eradicated the effects of the alleged violation.” Porter

v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007) (quoting Los Angeles County v.

Davis, 440 U.S. 625, 631 (1979)). There are no collateral continuing legal

disputes.

      “When a civil case becomes moot pending appellate adjudication, ‘[t]he

established practice . . . is to reverse or vacate the judgment below and remand

with a direction to dismiss.’” Arizonans for Official English v. Arizona, 520 U.S.

43, 71-72 (1997) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39

(1950)). “Vacatur expunges an adverse decision that would be reviewable had this

case not become moot.” Camreta v. Greene, 131 S. Ct. 2020, 2035 n.10 (citing

Arizonans, 520 U.S. at 74). NMFS alone possesses the authority to establish a take

reduction team; the plaintiffs did not cause mootness through voluntary action. See

United States v. Payton, 593 F.3d 881, 884-85 (9th Cir. 2010) (quoting U.S.

Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994)). We therefore

vacate the judgment below, remand, and direct the district court to dismiss this

action. See Arizonans, 520 U.S. at 71-72.

      The judgment is VACATED and the case is REMANDED.




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