Here is the Ninth Circuit’s unpublished opinion in Salmon Spawning & Recovery Alliance v. NOAA, and a partial dissent. Here is the tribal amicus brief (SSRA v NOAA — Tribal Amicus Brief). Judge Berzon writes in dissent:
I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.
Moreover,
Finally, the agency’s consideration of federal trust responsibilities to treaty tribes does not support, as the majority maintains, the agency’s decision to depart from its chosen methodology and thereby endanger the Nooksack River Salmon population. To the contrary, the agency was required to consider its trust responsibilities when developing the methodology in the first instance. If NMFS’s chosen methodology had failed to account for its trust responsibilities, the methodology itself would have been fatally flawed.
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