Center for Biological Diversity v. Lohn ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY, 
Plaintiff-Appellant,
v. No. 05-35638
ROBERT LOHN, Northwest Regional D.C. No.
Administrator of National Marine  CV-02-02505-RSL
Fisheries Service; CARLOS M.
ORDER AND
GUTIERREZ, Secretary of
OPINION
Commerce, U.S. Department of
Commerce,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
November 15, 2006—Portland, Oregon
Filed December 27, 2007
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge O’Scannlain
16837
16840 CENTER FOR BIOLOGICAL DIVERSITY v. LOHN
COUNSEL
Brent Plater, Center for Biological Diversity, San Francisco,
California, for the plaintiff-appellant, and filed briefs.
M. Alice Thurston, Environment and Natural Resources Divi-
sion, U.S. Department of Justice, Washington, DC, argued for
the defendants-appellees; Sue Ellen Woolridge, Assistant
Attorney General, Keith Rizzardi and David Shilton, Environ-
ment and Natural Resources Division, U.S. Department of
Justice, Washington, DC, Melanie J. Rowland, Office of the
General Counsel, National Oceanic and Atmospheric Admin-
istration, Seattle, Washington, and Benjamin C. Jesup, Office
of the Solicitor, U.S. Department of the Interior, Washington,
DC, were on the brief.
CENTER FOR BIOLOGICAL DIVERSITY v. LOHN 16841
ORDER
The petition for panel rehearing is GRANTED. The opin-
ion filed on April 26, 2007, and appearing at 483 F.3d 984(9th Cir. 2007) is withdrawn. The superseding opinion will be
filed concurrently with this order. No further petitions for
rehearing or rehearing en banc may be filed.
OPINION
O’SCANNLAIN, Circuit Judge:
We are asked to decide whether the federal government’s
policy for listing killer whales under the Endangered Species
Act is invalid.
I
The Center for Biological Diversity (“Center”), along with
eleven co-petitioners not parties to this appeal, petitioned the
National Marine Fisheries Service (“Service”) to list the
Southern Resident killer whale (“Southern Resident”) as an
endangered species under the Endangered Species Act
(“ESA”), 16 U.S.C. §§ 1531-1544.1 Applying its Distinct
Population Segment Policy (“DPS Policy”)2 for listing endan-
gered species under the ESA, the Service issued a proposed
ruling that concluded listing the Southern Resident was “not
warranted” because the Southern Resident was not “signifi-
cant” to its taxon. See 67 Fed. Reg. 44,133 (July 1, 2002).
1
As the facts and the procedural posture of the case are thoroughly set
forth in the district court’s published order, we repeat them here only as
necessary. See Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223(W.D. Wash. 2003).
2
See Policy Regarding the Recognition of Distinct Vertebrate Popula-
tion Segments Under the Endangered Species Act, 61 Fed. Reg. 4722(Feb. 7, 1996). (notice of policy).
16842 CENTER FOR BIOLOGICAL DIVERSITY v. LOHN
The Center challenged the Service’s proposed determina-
tion in district court. On cross-motions for summary judg-
ment, the district court granted in part and denied in part. Ctr.
for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1243
(W.D. Wash. 2003). The district court concluded that the DPS
Policy was not contrary to congressional intent regarding the
ESA, and that it was a reasonable interpretation of the ambig-
uous term “distinct population segment.”3 Id. at 1235-36.
However, the district court set aside the Service’s “not war-
ranted” finding because it failed to utilize the best available
scientific data when determining whether the Southern Resi-
dent was “significant” under that policy. Id. at 1240-41. The
district court ordered the Service to reexamine according to
the declared legal standard whether the Southern Resident
should be listed as an endangered species and to issue a new
finding within twelve months. Id. at 1243.
Pursuant to the district court’s order, the Service reexam-
ined the listing petition and issued a proposed rule that recom-
mended listing the Southern Resident as a threatened species.
See 69 Fed. Reg. 76,673 (Dec. 22, 2004). The Center then
appealed from the district court’s judgment, arguing that the
Service’s DPS Policy is not entitled to deference under Chev-
ron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
3The ESA defines a “species” as “any subspecies of fish or wildlife or
plants, and any distinct population segment of any species of vertebrate
fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16)
(emphasis added). The Act, however, fails to define the term “distinct pop-
ulation segment.” The Service, in conjunction with the Fish and Wildlife
Service, published the DPS Policy in 1996 to clarify their interpretation of
the term “distinct population segment.” See 61 Fed. Reg. 4722. According
to the DPS Policy, the Service evaluates three factors when considering
identification of a “distinct population segment”: (1) “Discreteness of the
population segment in relation to the remainder of the species to which it
belongs;” (2) “The significance of the population segment to the species
to which it belongs; and” (3) “The population segment’s conservation sta-
tus in relation to the Act’s standards for listing (i.e., is the population seg-
ment, when treated as if it were a species, endangered or threatened?).” Id.
at 4725.
CENTER FOR BIOLOGICAL DIVERSITY v. LOHN 16843
837 (1984), and that the policy is unlawfully restrictive. Sub-
sequently, the Service issued a final rule listing the Southern
Resident as an endangered (as opposed to threatened) species.
See 70 Fed. Reg. 69,903 (Nov. 18, 2005).
II
The Service contends that this case is now moot because it
has, since the district court’s decision, issued a proposed rule
that recommended listing the Southern Resident as a threat-
ened species and ultimately has issued a final rule listing the
Southern Resident as an endangered species.
A
[1] If an event occurs during the pendency of the appeal
that renders the case moot, we lack jurisdiction. See United
States v. Geophysical Corp. of Alaska, 732 F.2d 693, 698 (9th
Cir. 1984). When a plaintiff seeks declaratory relief, as here,
the “test for mootness . . . is ‘whether the facts alleged, under
all the circumstances, show that there is a substantial contro-
versy, between parties having adverse legal interests, of suffi-
cient immediacy and reality to warrant the issuance of a
declaratory judgment.’ ” Biodiversity Legal Found. v. Badg-
ley, 309 F.3d 1166, 1174-75 (9th Cir. 2002) (quoting Md.
Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).
“Stated another way, the ‘central question’ before us is
‘whether changes in the circumstances that prevailed at the
beginning of litigation have forestalled any occasion for
meaningful relief.’ ” Gator.Com Corp. v. L.L. Bean, Inc., 398
F.3d 1125, 1129 (9th Cir. 2005) (en banc) (quoting West v.
Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 n.4 (9th Cir.
2000)). The Service carries the burden of establishing moot-
ness. See S. Or. Barter Fair v. Jackson County, 372 F.3d
1128, 1134 (9th Cir. 2004).
B
[2] The Center asks us to declare the Service’s DPS Policy
unlawful and to “instruct [the Service] not to apply the DPS
16844 CENTER FOR BIOLOGICAL DIVERSITY v. LOHN
Policy in making a final determination on the agency’s deci-
sion to finalize the proposed rule to list the Southern Resident
killer whale.” Because the Service has issued its final rule list-
ing the Southern Resident as an endangered species, we can-
not instruct the Service to complete the final determination
process without applying the DPS Policy. We cannot grant the
injunctive relief the Center seeks and therefore this claim for
relief is moot. See Friends of the Earth, Inc. v. Bergland, 576
F.2d 1377, 1379 (9th Cir. 1978) (“Where the activities sought
to be enjoined have already occurred, and the appellate courts
cannot undo what has already been done, the action is
moot.”).
[3] We have held, however, that where, as here, both
injunctive and declaratory relief are sought but the request for
injunctive relief is rendered moot, the case is not moot if
declaratory relief would nevertheless provide meaningful
relief. Biodiversity Legal Found., 309 F.3d at 1175. In this
case, no “live” controversy remains between the parties
because the challenged activity has “evaporated or disap-
peared.” Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d
1012, 1015 (9th Cir. 1989) (stating that “[a] case or contro-
versy exists justifying declaratory relief only when ‘the chal-
lenged government activity . . . is not contingent, has not
evaporated or disappeared, and, by its continuing and brood-
ing presence, casts what may well be a substantial adverse
effect on the interests of the petitioning parties’ ” (quoting
Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122
(1974)). In short, declaring the DPS Policy unlawful would
serve no purpose in this case because the Service has listed
the Southern Resident as an endangered species, the Center’s
ultimate objective. That the DPS Policy might adversely
affect the Southern Resident’s endangered species status or
the Service’s listing determination of certain other killer
whale populations at some indeterminate time in the future is
too remote and too speculative a consideration to save this
case from mootness. See id. (explaining that no case or con-
troversy exists justifying declaratory relief where the pur-
CENTER FOR BIOLOGICAL DIVERSITY v. LOHN 16845
ported “adverse effect” is “ ‘so remote and speculative that
there [is] no tangible prejudice to the existing interests of the
parties’ ” (alteration and emphasis in original) (quoting Super
Tire Eng’g Co., 416 U.S. at 123)). We conclude, therefore,
that the Center’s claim for declaratory relief is also moot, as
we can provide no meaningful relief.4
C
[4] The Center argues that even if this case is technically
moot, we have jurisdiction to consider the merits because one
of the exceptions to the mootness doctrine applies. We have
recognized several major exceptions to mootness, including
for (1) “collateral legal consequences,” (2) “wrongs capable
of repetition yet evading review,” and (3) “voluntary cessa-
tion.” In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005). We are
persuaded that none of these exceptions fits this case.
1
[5] The first exception to the mootness doctrine applies
where an appellant “would suffer collateral legal conse-
quences if the actions being appealed were allowed to stand.”
Pub. Utilities Comm’n of the State of Cal. v. F.E.R.C., 100
4
The Center argues that our decision in Biodiversity Legal Foundation,
309 F.3d 1166, compels a contrary conclusion. There, we explained that
the plaintiffs sought two remedies: “(1) to compel the Service to make the
requested listing determinations [under the ESA]; and (2) to declare that
16 U.S.C. § 1533 requires the Service to make initial listing determina-
tions within twelve months after receiving a petition.” Id. at 1173.
Although the agency completed the listing determinations encompassed
within the complaint while the case was on appeal, we held that the case
was not moot because the “allegedly wrongful delay is capable of repeti-
tion yet evading review,” a recognized exception to mootness. Id. at 1173-
74. But the Center’s reliance on Biodiversity Legal Foundation is unavail-
ing, because the Center fails to argue that the allegedly wrongful conduct
of applying the DPS Policy to a listing determination is similarly capable
of repetition yet evading review. Moreover, as discussed below, we do not
believe this exception to mootness applies in this case.
16846 CENTER FOR BIOLOGICAL DIVERSITY v. LOHN
F.3d 1451, 1460 (9th Cir. 1996). The Center argues that the
“collateral legal consequences” exception applies because,
relying on the district court’s order and the doctrine of collat-
eral estoppel, the Service has attempted to preclude the Center
from challenging the DPS Policy in other legal proceedings.
But this argument is foreclosed by our precedent, as the Cen-
ter’s suggested harm is merely hypothetical or speculative.
See Burrell, 415 F.3d at 999 (holding that a party “may not
invoke as an exception to the mootness doctrine the specter of
continuing legal harm from res judicata or collateral estoppel
arising from his mooted claims when such harm is merely
hypothetical and speculative”). Furthermore, as we consider
below, our general practice of vacating the district court’s
judgment “is commonly utilized in precisely this situation to
prevent a judgment, unreviewable because of mootness, from
spawning any legal consequences.” United States v. Munsing-
wear, Inc., 340 U.S. 36, 41 (1950); see also Burrell, 415 F.3d
at 999. The Center suggests no other collateral legal conse-
quences and we perceive none. Accordingly, this exception to
mootness does not apply.
2
[6] The exception for “wrongs capable of repetition yet
evading review” only applies when two criteria are met.
Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th
Cir. 1994). “First, there must be a ‘reasonable expectation’
that the same complaining party will be subject to the same
injury again. Second, the injury suffered must be of a type
inherently limited in duration such that it is likely always to
become moot before federal court litigation is completed.” Id.
at 1509-10 (citations omitted). Assuming, arguendo, that the
Center will be subject to the same purported injury again, we
are convinced that the second requirement is not met. The
Service’s application of the DPS Policy to deny a petition to
list a species as endangered, the alleged injury here, is not “a
type inherently limited in duration such that it is likely always
to become moot before federal court litigation is completed.”
CENTER FOR BIOLOGICAL DIVERSITY v. LOHN 16847
In the normal course, a “not warranted” determination does
not “resolve[ ] itself without allowing sufficient time for
appellate review.” Biodiversity Legal Found., 309 F.3d at
1174. Indeed, we routinely review “not warranted” determina-
tions. See, e.g., Nw. Ecosystem Alliance v. U.S. Fish & Wild-
life, 475 F.3d 1136 (9th Cir. 2007); Ctr. for Biological
Diversity v. Badgley, 335 F.3d 1097 (9th Cir. 2003). Accord-
ingly, we are unpersuaded that this exception to mootness
applies.
3
[7] Finally, “[i]t is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice.”
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289
(1982). In this case, however, the Service did not voluntarily
cease applying the challenged DPS Policy during the final
listing determination of the Southern Resident. Rather, the
Service issued the final rule listing the Southern Resident as
an endangered species after reexamining the listing petition,
as ordered by the district court, applying the DPS Policy in
light of the district court’s ruling. We therefore conclude that
the “voluntary cessation” exception to mootness does not
apply.
III
The Service’s issuance of a final rule listing the Southern
Resident as an endangered species renders this case moot.
Accordingly, we vacate the portion of the district court’s
order from which the Center has appealed. 28 U.S.C. § 2106;
see Dilley v. Gunn, 64 F.3d 1365, 1371 n.5 (9th Cir. 1995)
(noting that we will only vacate a judgment of a district court
if it is appealed to this court).
We DISMISS this appeal as moot and REMAND the case
to the district court with instructions to VACATE its grant of
summary judgment in favor of the Service.