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Humane Society v. Gutierrez (9th Cir. - April 24, 2008)

By Shaun Martin

Sometimes justice is way speedy. Which is, in part, why I loved this one.

It's just an order on an emergency motion for a stay pending appeal of a preliminary injunction motion. You don't see many of those granted -- especially with a published order -- outside the death penalty context.

The question is whether Oregon and Washington can remove -- e.g., kill -- some sea lions (up to 85/year)who will otherwise eat a lot (e.g., up to 2000) endangered Chinook salmon below the Bonneville Dam on the Columbia River. Oregon and Washington planned to start whacking the sea lions today, the Humane Society requested a preliminary injunction below but were denied, so they filed an emergency motion in the Ninth Circuit. Their mantra: "Save the Sea Lions. Kill the Fish." Just kidding. More like: "Save the Sea Lions. Circle of Life for the Other Guys."

The motions panel -- to its credit -- takes the motion incredibly seriously. And grants it, in part. The Court says, correctly, that there's irreparable injury either way: if you kill the sea lions, they're dead, but if you let them eat the fish, the fish are dead. So where does the balance lie? Well, you could obviously favor the side you think will win the appeal. But it's typically pretty hard to figure out where that balance lies in the context of an emergency motion.

So the Ninth Circuit says: "Look, apparently, the fish run this particular year looks like it'll be pretty big; something like 269,000 fish. So letting sea lions gobble up 200-2000 fish won't be a monster deal. As a result, I won't let you whack the sea lions. But I'll tell you what I'm going to do for you. First, I'll let Oregon and Washington catch sea lions and relocate them to zoos and aquaria. They say they can do that for around 19 of them; go ahead. You can't whack 'em, but you can sell 'em into bondage.

Second [and I very much liked this part], let's speed this thing up. We hereby sua sponte expedite the appeal. Your briefs are now due to be exchanged simultaneously 7 days from now. With opposition briefs due 4 days later. And we hereby schedule the appeal on the merits to be heard 3 days thereafter. Justice is speedy, my friends. Now, if that freaks all of the attorneys out [as it well may!], you guys can stipulate if you want to keep on the current briefing schedule. Otherwise, I'll see you all at oral argument in two weeks, and enjoy the next week and a half of all-day-and-all-night briefing."

I love it. Both the Solomonic decision and the sua sponte briefing order. Absolutely love it.

Full post as published by California Appellate Report on April 24, 2008 (boomark / email).