Paul Donohoe v. Usfs ( 2023 )

FILED
JUL 6 2023
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL DONOHOE; CATHY DONOHOE; No. 22-35380
TORIAN DONOHOE; KYLE
DONOHOE; ANNA DONOHOE; DAVID D.C. No. 1:20-cv-00137-SPW
ARTHUN; KAYCE ARTHUN; CASTLE
CREEK RANCH, L.P.,
MEMORANDUM*
Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE;
MARY ERICKSON, Forest Supervisor;
KEN COFFIN, District Ranger,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted June 6, 2023
Seattle, Washington
Before: SCHROEDER, CALLAHAN, and BEA, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge CALLAHAN.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Paul and Cathy Donohoe; Torian Donohoe; Kyle and Anna Donohoe; David
and Kayce Arthun, and Castle Creek Ranch L.P. (the “Donohoes”) appeal the
district court’s grant of summary judgment in favor of the United States Forest
Service (“USFS”) in an action alleging that USFS violated the National
Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and
the National Forest Management Act (“NFMA”) in approving two projects: the
“Bridge Project” and the “Trail Project.” USFS has moved to dismiss the appeal as
moot.
(1) The motion to dismiss is granted only as to the NEPA claims. While
“defendants in NEPA cases face a particularly heavy burden in establishing
mootness,” Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001), in
this case there is no present controversy as to which effective NEPA relief can be
granted, and the claims are moot. See Feldman v. Bomar, 518 F.3d 637, 642 (9th
Cir. 2008). The Bridge Project was completed in the summer of 2019 and the Trail
Project was completed in October of 2022. Setting aside the Decision Memo and
other documents authorizing the Projects would have no effect since there is no
future activity to enjoin and there appears no other relief could be ordered to
remedy the alleged harm. See Native Vill. of Nuiqsut v. Bureau of Land Mgmt., 9
F.4th 1201, 1209 (9th Cir. 2021). Neither party has suggested that the “voluntary
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cessation” or the “capable of repetition while evading review” exceptions to
mootness apply here. We therefore vacate the district court’s decision as to the
NEPA claims and remand with instructions to dismiss the claims as moot.
(2) The district court declined to exercise jurisdiction over the ESA claims
because the Donohoes did not send a second 60-day notice of intent letter
following USFS’s consultation with the Fish and Wildlife Service (“FWS”). Such
notice was required. See 16 U.S.C. § 1540(g)(2)(A)(i); Klamath-Siskiyou
Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650–51 (9th Cir. 2015). The
Donohoes’ initial notice of intent letter complained that USFS violated the ESA
when it failed to take into account certain impacts the Trail Project might have on
grizzly bears and failed to engage in formal consultation with the FWS. As a
result, USFS revised its analysis in its 2020 Biological Assessment and consulted
with the FWS. The Donohoes did not send a second notice of intent letter
following USFS’s consultation with FWS.
The Donohoes rely on the one-page June 10, 2020 letter that was sent before
the consultation was complete, and states that the 2020 Revised Biological
Assessment remained flawed or incomplete. The Donohoes were “not required to
list every specific aspect or detail of every alleged violation,” Cmty. Ass’n for
Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002)
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(internal quotation omitted), but the June 10, 2020 letter failed to describe any
particular inadequacy. The record does not suggest that the Donohoes sent another
letter or otherwise ever informed USFS that specific ESA violations remained after
the consultation process was completed. Assuming the ESA claims are not moot,
we must hold that the district court correctly ruled it lacked jurisdiction to consider
them. The motion to dismiss is denied as to the ESA claims and the district court’s
judgment as to those claims is affirmed.
VACATED in part, AFFIRMED in part.
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FILED
Donohoe v. USFS, No. 22-35380 JUL 6 2023
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree with all but Part 2 of the memorandum disposition which concludes
that the district court properly dismissed the ESA claims because the Donohoes
failed to send a second 60-day notice of intent to sue letter following USFS’s
consultation with FWS. In my view, the Donohoe’s letter dated June 10, 2020,
when read in context with the first notice of intent letter, adequately provided
USFS notice of the alleged ESA violations pursuant to the requirements of 16
U.S.C. § 1540(g). See, e.g., Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d
985, 997 (9th Cir. 2000) (holding that a reviewing court may examine both the
notice itself and the behavior of its recipients to determine whether the party
understood or reasonably should have understood the alleged violations based on
the notice).
Here, the violations outlined in Donohoes’ original notice of intent letter
included that (1) USFS had improperly applied screening criteria to the Projects to
achieve its desired outcome; (2) USFS had not consulted with FWS even though
the limited analysis rendered a “may affect but is not likely to adversely affect”
(“NLAA”) ESA-listed species; and (3) USFS’s NLAA finding was based on an
inappropriate description of the Projects as rebuilding trails that failed to properly
consider the impacts of opening a new Trail into the remote WF Stillwater
backcountry. In response to this notice of intent letter, USFS initiated consultation
with FWS and issued a 2020 revised biological assessment. The Donohoes then
sent a June 10, 2020, letter to USFS acknowledging that USFS had “now properly
initiated Section 7 consultation” with FWS, but separately noting that “critical
aspects of the [2020 revised biological assessment] remained flawed, incomplete,
or improperly analyzed.”
The purpose of the ESA’s notice provision is “‘to put the agencies on notice
of a perceived violation of the statute’ and to give them the ‘opportunity to review
their actions and take corrective measures if warranted.’” See Conservation Cong.
v. Finley, 774 F.3d 611, 618 (9th Cir. 2014) (quoting Sw. Ctr. for Biological
Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998)). But
the notice “need not provide the exact details of the legal arguments that the
plaintiffs intend to eventually make.” Finley, 774 F.3d at 618 (quoting Marbled
Murrelet v. Babbitt, 83 F.3d 1068, 1072–73 (9th Cir.1996)). When read in context
with the first letter, which identified three separate alleged violations, the June 10,
2020, letter provided adequate notice of intent to file suit under the ESA and was
sufficient to confer jurisdiction. See Finley, 774 F.3d at 618 (finding a second
notice of intent letter sent after agency published a revised recovery plan sufficient
even though it could have been more specific); see also Klamath-Siskiyou
Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650–51 (9th Cir. 2015) (holding that
environmental organizations provided sufficient notice of intent to file suit under
ESA, despite not listing every violation, considering the letter as a whole). I would
therefore vacate the district court’s finding of no jurisdiction over the ESA claims
and remand for the district court to consider the merits of the ESA claims in the
first instance.