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 2018-08

Wildearth Guardians v. Charles Mark ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       AUG 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILDEARTH GUARDIANS; et al.,                    No.    17-35461
Plaintiffs-Appellants,          D.C. No. 4:14-cv-00488-REB
v.
MEMORANDUM*
CHARLES A. MARK, in his official
capacity, and UNITED STATES FOREST
SERVICE, a federal agency,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding
Argued and Submitted July 11, 2018
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District
Judge.
WildEarth Guardians, Cascadia Wildlands, Kootenai Environmental
Alliance, Center for Biological Diversity, Western Watersheds Project, and Project
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
Coyote (collectively, WildEarth) appeal the district court’s grant of summary
judgment in favor of the U.S. Forest Service and Forest Supervisor Charles A.
Mark (together, Federal Appellees). WildEarth asks us to declare that Federal
Appellees violated the National Environmental Policy Act (NEPA) and their own
regulations by not requiring Idaho for Wildlife, a group of hunting enthusiasts, to
obtain a special recreation permit before holding its 2015 hunting derby.
WildEarth also seeks an injunction that would prevent Federal Appellees from
allowing any future hunting derbies on federal land until Federal Appellees issue
the appropriate permits and complete an environmental review. We hold that
WildEarth’s claims are moot, and remand to the district court with instructions to
vacate the judgment below and dismiss the action as moot. See United States v.
Munsingwear, Inc.,
    340 U.S. 36
    , 39 (1950).
The district court did not have jurisdiction to decide WildEarth’s claims
because this case became moot while WildEarth’s claims were pending before it.
See In re Burrell,
    415 F.3d 994
    , 997 (9th Cir. 2005). The district court filed its
summary judgment order on March 31, 2017, but the derby that WildEarth
challenges had already taken place in January 2015. Because the derby had
already taken place, the district court could not instruct Federal Appellees to issue
a permit or conduct a pre-derby environmental review, and it could not grant the
injunctive relief that WildEarth sought. This rendered WildEarth’s claims for
2
relief moot. See Ctr. for Biological Diversity v. Lohn,
    511 F.3d 960
    , 963–64 (9th
Cir. 2007).
To the extent WildEarth challenges future derbies and permitting decisions,
its claims are not yet ripe for review. See Mont. Envtl. Info. Ctr. v. Stone-Manning,
    766 F.3d 1184
    , 1188 (9th Cir. 2014). Because Idaho for Wildlife has not
scheduled any future hunting derbies, and WildEarth has not pointed to another
permit application pending before Federal Appellees, there is no claim of
“sufficient immediacy and reality to warrant the issuance of a declaratory
judgment” or other injunctive relief. See
    id. (quoting United 
    States v. Braren,
    338 F.3d 971
    , 975 (9th Cir. 2003)).
Nor is WildEarth’s claim the type of claim that is capable of repetition yet
evading review. “Permits issued by the Forest Service, and the administrative
process leading up to their issuance, are not inherently of such short duration that
challenges to their validity will go unreviewed.” Native Ams. for Enola v. U.S.
Forest Serv.,
    60 F.3d 645
    , 646 (9th Cir. 1995). Should Idaho for Wildlife or
anyone else schedule a hunting derby without seeking a special use permit or
environmental review, or should Federal Appellees again not require a special use
permit or environmental review when a permit is sought, WildEarth may seek a
temporary restraining order or preliminary injunction in federal district court, the
denial of which would be immediately appealable on an expedited basis. See
3
Ninth Cir. General Order 6.4; see also United States v. State of Oregon,
    657 F.2d 1009
    , 1012 (9th Cir. 1981); Save our Sonoran, Inc. v. Flowers,
    408 F.3d 1113
    ,
1119 (9th Cir. 2005). Because WildEarth could have used this procedural vehicle
to ensure judicial review of its claims but simply did not do so, the capable of
repetition while evading review exception to mootness does not apply.1
REMANDED with instructions to VACATE the judgment and to
DISMISS the action as moot. Each party shall bear its own costs.
1
Appellants’ motions to take judicial notice of extra-record material (ECF
Nos. 19, 37) are DENIED as moot.
4