Alaska Wilderness League v. Sally Jewell , 637 F. App'x 976 ( 2015 )


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  •                                                                            FILED
    UNITED STATES COURT OF APPEALS                          DEC 31 2015
    MOLLY C. DWYER, CLERK
    FOR THE NINTH CIRCUIT                       U.S. COURT OF APPEALS
    ALASKA WILDERNESS LEAGUE; et                   No. 15-35559
    al.,
    D.C. No. 3:15-cv-00067-SLG
    Plaintiffs - Appellants,          District of Alaska,
    Anchorage
    v.
    SALLY JEWELL, Secretary of the                 ORDER
    Interior; et al.,
    Defendants - Appellees,
    And
    ALASKA OIL AND GAS
    ASSOCIATION,
    Intervenor-Defendant -
    Appellee.
    Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
    Alaska Wilderness League and other environmental organizations
    (“Appellants”) appeal the district court’s order denying summary judgment on
    claims they brought pursuant to the Administrative Procedure Act (“APA”), 
    5 U.S.C. § 701
     et seq., and granting summary judgment on these claims in favor of
    the United States Fish and Wildlife Service (“USFWS”) and intervenor-defendant
    Alaska Oil and Gas Association (“AOGA”). In light of certain events that
    occurred after this appeal was filed, we ordered the parties to show cause why the
    appeal should not be dismissed as moot. Appellants, USFWS, and AOGA each
    filed a letter brief arguing against mootness, and reiterated this position at oral
    argument. Having thoroughly considered the question of mootness, we disagree
    with the parties’ view. We dismiss this appeal as moot, vacate the judgment and
    order of the district court, and direct the district court to dismiss this action upon
    remand.
    Appellants challenge an incidental take regulation (“Regulation”)
    promulgated by USFWS pursuant to the Marine Mammal Protection Act of 1972,
    (“MMPA”), 
    16 U.S.C. § 1361
     et seq. The Regulation authorizes the “take” of
    polar bears and Pacific walruses incidental to oil and gas exploration activity in a
    240,000-square-kilometer area of the Chukchi Sea, off the north coast of Alaska.
    Marine Mammals; Incidental Take During Specified Activities, 
    78 Fed. Reg. 35,364
    , 35,364–66 (June 12, 2013).1 This area includes what USFWS has
    designated the Hanna Shoal Walrus Use Area (“HSWUA”), a 24,600-square-
    1
    “Take” includes “any act of ‘torment’ or ‘annoyance’ that ‘has the potential
    to injure . . . or . . . disturb a marine mammal or marine mammal stock in the wild
    by causing disruption of behavioral patterns, including, but not limited to,
    migration, breathing, nursing, breeding, feeding, or sheltering.’” Ctr. for
    Biological Diversity v. Salazar, 
    695 F.3d 893
    , 898–99 (9th Cir. 2012) (alterations
    in original) (quoting 
    16 U.S.C. § 1362
    (13), (18)(A)(i)-(ii)).
    2
    kilometer area that the agency found has “long been recognized as a critical
    foraging area for the Pacific walrus in summer and fall.” 
    Id. at 35,371
    . USFWS
    authorized incidental take based in part on the finding that the total take of Pacific
    walruses in the regulated region would have a “negligible impact” on the species.
    
    Id. at 35
    ,403–04; see 
    16 U.S.C. § 1371
    (a)(5)(A)(i)(I). Appellants contend USFWS
    violated the MMPA by predicating its negligible impact finding on undefined
    future mitigation measures in the HSWUA. Appellants also contend USFWS’s
    environmental assessment, which found that the Regulation would have no
    significant impact on the environment, violated the National Environmental Policy
    Act (“NEPA”), 
    42 U.S.C. § 4321
     et seq., because it depended upon a “short,
    incomplete, and bare list of possible generic mitigation categories for part of
    Hanna Shoal.”
    At the time this appeal was filed, Shell was the only firm conducting oil
    exploration activities in or near the HSWUA. It was also the only firm with an
    active letter of authorization (“LOA”) from USFWS, the means specified in the
    MMPA’s implementing regulations for obtaining authorization to conduct
    activities pursuant to the incidental take regulation. See 
    50 C.F.R. § 18.27
    ; Ctr. for
    Biological Diversity v. Salazar, 
    695 F.3d 893
    , 899 (9th Cir. 2012). On September
    28, 2015, Shell announced that it would “cease further exploration activity in
    3
    offshore Alaska for the foreseeable future.” Press Release, Shell Global, Shell
    Updates on Alaska Exploration (Sept. 28, 2015), http://www.shell.com/global/
    aboutshell/media/news-and-media-releases/2015/shell-updates-on-alaska
    -exploration.html. Shell stated that, although it had found some indications of oil
    and gas, these were not sufficient to justify ongoing exploration because of “the
    high costs associated with the project, and the challenging and unpredictable
    federal regulatory environment in offshore Alaska.” 
    Id.
     USFWS represents that
    there has been “reported low industry interest” in any further activity.2 The parties
    conceded in their letter briefs and at argument that they are aware of no impending
    applications to conduct oil and gas exploration activities in the regulated region,
    which are a necessary antecedent for any further authorizations. The Regulation
    will expire of its own force on June 12, 2018. 78 Fed. Reg. at 35,364.
    2
    In addition, on October 16, 2015, the United States Department of
    the Interior canceled auctions for drilling rights in nearby regions offshore
    of Alaska, and it denied requests by Shell and Statoil to extend offshore drilling
    leases. Press Release, U.S. Dep’t of the Interior, Interior Department Cancels
    Arctic Offshore Lease Sales (Oct. 16, 2015), https://www.doi.gov/pressreleases/
    interior-department-cancels-arctic-offshore-lease-sales. On November 17, 2015,
    Statoil announced that its leases in the Chukchi Sea were “no longer considered
    competitive within [its] global portfolio,” and that it would exit 66 leases of which
    it was a stakeholder or operator. Press Release, Statoil, Statoil Exits Alaska (Nov.
    17, 2015), http://www.statoil.com/en/NewsAndMedia/News/2015/Pages/
    17Nov_Alaska.aspx.
    4
    “[W]e bear an independent obligation to assure ourselves that jurisdiction is
    proper before proceeding to the merits.” Golden v. Cal. Emergency Physicians
    Med. Grp., 
    782 F.3d 1083
    , 1086 (9th Cir. 2015) (quoting Plains Commerce Bank
    v. Long Family Land & Cattle Co., 
    554 U.S. 316
    , 324 (2008)). We lack
    jurisdiction “over claims that have been rendered moot because the issues
    presented are no longer live or because the parties no longer possess a legally
    cognizable interest in the outcome.” Jones v. Williams, 
    791 F.3d 1023
    , 1031 (9th
    Cir. 2015) (citations and internal quotation marks omitted). The parties’ agreement
    that a case is not moot “weighs in favor of our jurisdiction,” but does not relieve us
    of our “independent duty to consider sua sponte whether a case is moot.” Hunt v.
    Imperial Merch. Servs., Inc., 
    560 F.3d 1137
    , 1141 (9th Cir. 2009) (citation and
    internal quotation marks omitted).
    Appellants brought this action based on their members’ aesthetic,
    conservationist, scientific, and recreational interests in Pacific walruses. See Lujan
    v. Defenders of Wildlife, 
    504 U.S. 555
    , 562–63 (1992). The relief Appellants
    request, vacatur of the Regulation, is related to these interests only in so far as it
    reduces the likelihood that Pacific walruses will be harmed. Appellants cannot
    seek to set aside agency action based on their “nonconcrete interest in the proper
    5
    administration of the laws.” See Summers v. Earth Island Inst., 
    555 U.S. 488
    , 497
    (2009) (citation and internal quotation marks omitted).3
    Since this appeal was filed, dramatic changes in circumstances have
    rendered remote and speculative the possibility that any oil and gas exploration
    activity will occur in or near the HSWUA in the less than three years before the
    Regulation expires. Shell has withdrawn from the region; no other firm has
    expressed interest in entering; and the plummeting price of oil, of which we may
    take judicial notice, has rendered economically unpalatable for the foreseeable
    future the substantial capital investment necessary for a firm to engage in oil and
    gas exploration in the regulated region.4 Even if an optimistic firm wished to do
    so, the Regulation does not by itself authorize any activity that could harm or
    disturb walruses. Under the “two-step process” established by the MMPA’s
    implementing regulations, the firm would first need to obtain an LOA from
    3
    In their Complaint, Appellants asserted procedural injuries, but stated these
    were “connected to Plaintiffs’ substantive conservation, recreational, scientific, and
    aesthetic interests.” Our law makes clear that “deprivation of procedural rights,
    alone, cannot confer Article III standing.” Wilderness Soc., Inc. v. Rey, 
    622 F.3d 1251
    , 1258 (9th Cir. 2010) (citing Summers, 
    555 U.S. at
    496–97).
    4
    Shell’s September 28, 2015 announcement noted that it expected to sustain
    financial losses as a result of its withdrawal from the region. Press Release, Shell
    Global, supra. Shell stated that the balance sheet carrying value of its Alaska
    position is “approximately $3.0 billion, with approximately a further $1.1 billion of
    future contractual commitments.” Id.
    6
    USFWS. Salazar, 695 F.3d at 899. If it did not, it would be subject to substantial
    civil and criminal penalties. Id. Shell’s LOA has expired, and the parties represent
    that they know of no firm in the region with an active LOA.
    The threat of harm on which foundation this action rests, the USFWS-
    countenanced disturbance of walruses by oil and gas firms, has melted away like so
    much Chukchi ice. The parties’ theory that this threat may yet resolidify before the
    Regulation expires is premised “upon the occurrence of future events now
    unforeseeable.” Foster v. Carson, 
    347 F.3d 742
    , 748 (9th Cir. 2003) (citation and
    internal quotation marks omitted). We have consistently held that such
    “speculative contingencies afford no basis for adjudication of the substantive
    issues presented.” 
    Id.
    The parties’ arguments to the contrary are unavailing. Appellants contend
    that our opinion in Center for Biological Diversity v. Kempthorne, 
    588 F.3d 701
    (9th Cir. 2009), authorizes facial challenges to MMPA incidental take regulations,
    without reference to any particular LOA issued under a regulation. More broadly,
    the parties argue that our Circuit has not found to be moot facial challenges to
    regulatory frameworks under which allegedly injurious activities may be
    authorized, even if a given activity has ceased and no such activity is ongoing
    during the pendency of the appeal. See, e.g., Washington v. Daley, 
    173 F.3d 1158
    ,
    7
    1164–65 (9th Cir. 1999). The parties contend such cases are justiciable, either as a
    general matter, or under the “capable of repetition, yet evading review” exception
    to mootness doctrine.
    Cases in this posture may not necessarily be moot, but it does not follow that
    they cannot be. Our decisions recognize that where a regulatory framework like
    the MMPA allows an agency to authorize activities, and the agency has done so
    and is likely to continue to do so, strictly requiring a plaintiff to limit her facial
    case to harms associated with some discrete and transitory authorization would be
    neither expeditious nor constitutionally compelled. See 
    id. at 1165
    . This does not
    mean the plaintiff can challenge the framework in vacuo, based on nothing more
    than the “speculative contingenc[y]” that some future authorization might be made.
    Foster, 
    347 F.3d at 748
    ; cf. Summers, 
    555 U.S. at 497
    . Likewise, the “capable of
    repetition, yet evading review” exception requires “a reasonable expectation that
    the same complaining party will be subject to the same action again.” FEC v. Wis.
    Right to Life, Inc., 
    551 U.S. 449
    , 462 (2007) (citation and internal quotation marks
    omitted).
    We conclude that these standards are no longer satisfied here. While they
    may have been at the time this action commenced, circumstances have changed
    dramatically, “forestall[ing] any occasion for meaningful relief.” Cantrell v. City
    8
    of Long Beach, 
    241 F.3d 674
    , 678 (9th Cir. 2001) (citation and internal quotation
    marks omitted).5 This conclusion follows from an unusual confluence of
    regulatory structure and operative facts. The Regulation has an expiration date in
    the near future. The only firm in a position to operate under it near the HSWUA
    has withdrawn. No firm appears poised to take its place. Offshore oil exploration
    in the Arctic is a daunting, costly activity that is not economically feasible when, as
    now, the price of oil has plummeted to new lows. The LOA process, though not
    subject to the requirements of notice and comment, imposes an additional, delaying
    step between the Regulation’s generalized authorization of incidental take and the
    particularized authorization of any activity that could disturb or harm Pacific
    walruses. Against this backdrop, the parties’ theory that circumstances may yet
    radically change while the Regulation remains in force is simply too “remote and
    speculative” to rescue from mootness Appellants’ claims for injunctive and
    declaratory relief under the APA. See Feldman v. Bomar, 
    518 F.3d 637
    , 643 (9th
    Cir. 2008) (citation omitted).
    5
    Nor does the voluntary cessation doctrine save Appellants’ claims. See
    Already, LLC v. Nike, Inc., 
    133 S. Ct. 721
    , 727 (2013). USFWS has not
    voluntarily ceased any activity, and Shell, though a member of AOGA, is not a
    party to this case. Even if the voluntary cessation doctrine applies on these facts, it
    is not a basis on which to reach the merits of Appellants’ claims, as we “conclude
    the case is moot because the challenged conduct cannot reasonably be expected to
    recur” during the period the Regulation remains in effect. See 
    id. at 729
    .
    9
    We are mindful that the parties’ respective interests in this litigation extend
    beyond this particular dispute, and it is only natural that, having expended time and
    resources in this litigation, they would like to see a final judicial resolution.
    Appellants and AOGA regularly appear in federal court to advocate the positions
    of their members on similar issues, and USFWS regularly defends its actions
    against similar MMPA and NEPA challenges. All involved might find some value
    in a binding merits ruling, whatever the outcome, that they might better understand
    the legal landscape, or seascape, they inhabit. But litigants cannot create federal
    jurisdiction by consent alone. “No matter how vehemently the parties continue to
    dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot
    if the dispute is no longer embedded in any actual controversy about the plaintiffs’
    particular legal rights.” Already, LLC v. Nike, Inc., 
    133 S. Ct. 721
    , 727 (2013)
    (citation and internal quotation marks omitted). Because changed conditions have
    mooted the underlying controversy, we cannot issue the advisory opinion the
    parties seek. See United States v. Yakima Tribal Court, 
    806 F.2d 853
    , 857 (9th Cir.
    1986).
    “When a civil case becomes moot pending appellate adjudication, ‘[t]he
    established practice . . . in the federal system . . . is to reverse or vacate the
    judgment below and remand with a direction to dismiss.’” Arizonans for Official
    10
    English v. Arizona, 
    520 U.S. 43
    , 71 (1997) (alterations in original) (quoting United
    States v. Munsingwear, Inc., 
    340 U.S. 36
    , 39 (1950)). “Vacatur is in order when
    mootness occurs through happenstance—circumstances not attributable to the
    parties . . . .” 
    Id.
     (citation omitted). We find that vacatur is appropriate under the
    circumstances here presented, and therefore vacate the judgment and order of the
    district court, and direct the district court on remand to dismiss this action. See 
    28 U.S.C. § 2106
    .
    This appeal is dismissed as moot, and the judgment and order of the district
    court are vacated. The district court shall dismiss this action upon remand.
    IT IS SO ORDERED.
    11