                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 29 2013

                                                                          MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


KAHEA; FOOD & WATER WATCH,                       No. 12-16445
INC.,
                                                 D.C. No. 1:11-cv-00474-SOM-
              Plaintiffs - Appellants,           KSC

  v.
                                                 MEMORANDUM*
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.


                   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.


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                              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,”
                                                                              page 3
“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.
