Opinion
No. 01-35266.
Argued and Submitted En Banc September 16, 2003.
Filed December 30, 2003. Amended March 16, 2004.
Rebecca L. Bernard and Jack K. Sterne, Trustees for Alaska, Anchorage, AK, for the plaintiffs-appellants.
Kathryn E. Kovacs, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for defendant-appellee.
Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CV-98-00409-JKS.
Before: SCHROEDER, Chief Judge, PREGERSON, REINHARDT, T.G. NELSON, HAWKINS, SILVERMAN, WARDLAW, W. FLETCHER, GOULD, BERZON, and CLIFTON, Circuit Judges.
ORDER
Defendant-appellee's Petition for Rehearing En Banc Regarding Remedy is GRANTED.
The opinion of the en banc court in this case, Wilderness Society v. United States Fish and Wildlife Serv., 353 F.3d 1051 (9th Cir. 2003), is amended as follows:
In Section IV of the en banc court's opinion, 353 F.3d at 1070, after the paragraph concluding "[p]laintiffs were entitled to gain a final judgment enjoining operation of the Tustumena Lake Sockeye Salmon Enhancement Project," insert a new paragraph that reads:
"On remand, the scope of immediate injunctive relief is submitted to the discretion of the District Court. The District Court shall have discretion, upon an adequate showing of justification, to fashion the injunction so as to accommodate a resolution with respect to this year's batch, and this year's batch only, of six million sockeye salmon fry from Bear Creek that are currently in the CIAA's Trail Lakes hatchery. See Nat'l Parks Conservation Ass'n v. Babbitt, 241 F.3d 722, 740 (9th Cir. 2001)."IT IS SO ORDERED.