Nw. Ctr. for Alternatives to Pesticides v. Usdhs ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST CENTER FOR No. 21-35751
ALTERNATIVES TO PESTICIDES; et. al.,
D.C. No. 3:20-cv-01816-IM
Plaintiff-Appellant,
v. MEMORANDUM*
U.S. DEPARTMENT OF HOMELAND
SECURITY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Karin J. Immergut, District Judge, Presiding
Argued and Submitted October 7, 2022
Portland, Oregon
Before: OWENS and MILLER, Circuit Judges, and PREGERSON,** District
Judge.
Plaintiffs Northwest Center for Alternatives to Pesticides, Willamette
Riverkeeper, Cascadia Wildlands, Neighbors for Clean Air, and 350PDX
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
(collectively “NCAP”) appeal the district court’s grant of Defendants’ (U.S.
Department of Homeland Security and its Secretary Alejandro Mayorkas,
collectively “DHS”) motion to dismiss. We have jurisdiction under 28 U.S.C.
§ 1291, and we dismiss this appeal as moot.1
NCAP alleges that DHS violated the National Environmental Policy Act
(“NEPA”) by not preparing an environmental analysis for Operation Diligent
Valor, which deployed additional law enforcement personnel to Portland and used
various riot control agents, including tear gas and other chemical agents, for crowd
control. DHS argues that NCAP’s sole claim is moot because Operation Diligent
Valor has ended. Although NCAP does not concede that Operation Diligent Valor
is over, NCAP does not assert that DHS is continuing to use tear gas and other
chemical agents in Portland.
The end of DHS’s use of tear gas and other chemical agents in Portland
during Operation Diligent Valor renders NCAP’s claim moot unless “the violation
complained of may have caused continuing harm and . . . the court can still act to
remedy such harm by limiting its future adverse effects.” Feldman v. Bomar, 518
F.3d 637, 643 (9th Cir. 2008) (citation omitted). NCAP argues that belated NEPA
analysis would limit future adverse effects because (1) chemicals used by DHS
entered the Willamette River, and if these chemicals were analyzed, any pollution
1
DHS’s motion to supplement the record (Dkt. No. 29) is granted.
2
they are causing could be better addressed, (2) NCAP’s members have ongoing
injuries that may be better treated if they can identify the type and quantity of
chemicals they were exposed to, (3) DHS may decide, based on the results of
belated analysis, not to use the same type or quantity of chemicals in the future,
and (4) DHS may itself take action to mitigate any environmental harms that it
caused.
We find that NCAP’s arguments are too speculative. Contrary to NCAP’s
contention, this case is unlike Columbia Basin, in which the offending power lines
were still in operation and could be moved. See Columbia Basin Land Prot. Ass’n
v. Schlesinger, 643 F.2d 585, 591 n.1 (9th Cir. 1981). The possibility that a belated
NEPA analysis would improve mitigation or change DHS conduct in the future is
too remote and speculative under our precedent. See, e.g., Friends of the Earth,
Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978).
As for the possibility that DHS’s use of chemical agents is capable of
repetition and would otherwise evade review, Spencer v. Kemna, 523 U.S. 1, 17
(1998), NCAP has not met its burden to invoke this exception. Specifically, NCAP
did not establish that DHS regularly causes the injuries alleged here, let alone that
DHS is likely to inflict the same injuries on NCAP in the future. See Sample v.
Johnson, 771 F.2d 1335, 1342 (9th Cir. 1985) (collecting cases “placing the burden
for showing a likelihood of recurrence firmly on the plaintiff”).
3
Because we find NCAP’s claim moot, we decline to reach DHS’s other
arguments.
DISMISSED.
4