State of Alaska v. AGRI ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2021 Decided November 16, 2021
No. 17-5260
STATE OF ALASKA,
APPELLANT
ALASKA ELECTRIC LIGHT & POWER, ET AL.,
APPELLEES
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
Consolidated with 17-5262, 17-5263
Appeals from the United States District Court
for the District of Columbia
(No. 1:11-cv-01122)
Mary Hunter Gramling, Assistant Attorney General, Office
of the Attorney General for the State of Alaska, argued the cause
for appellants. On the joint briefs were Thomas E. Lenhart,
Senior Assistant Attorney General, Stephen J. Kennedy, Steven
W. Silver, James F. Clark, III, Julie A. Weis, and Mark C.
Rutzick.
2
Julie A. Weis was on the joint brief for intervenor-appellants
Alaska Forest Association and Southeast Conference. With her
on the joint brief was Mark C. Rutzick.
John L. Smeltzer, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Jeffrey H. Wood, Acting Assistant Attorney General at the
time the brief was filed, Eric Grant, Deputy Assistant Attorney
General at the time the brief was filed, and Leslie Lagomarcino,
General Attorney, U.S. Department of Agriculture,
Ian Fein argued the cause for intervenor-appellees
Southeast Alaska Conservation Council, et al. On the brief were
Thomas S. Waldo, Eric P. Jorgensen, and Nathaniel S.W.
Lawrence. Katharine S. Glover entered an appearance.
Before: SRINIVASAN, Chief Judge, PILLARD, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: At the heart of this
protracted dispute is the “Roadless Rule,” a national regulation
of the Department of Agriculture’s Forest Service issued in early
2001.
After years of study, the Forest Service issued this Rule
prohibiting (with some exceptions) all “road construction, road
reconstruction, and timber harvesting in inventoried roadless
areas on National Forest System lands.” 66 Fed. Reg. 3244,
3244 (Jan. 12, 2001). An environmental impact statement,
assembled to comply with the National Environmental Policy
Act, 42 U.S.C. § 4332(C), preceded the Rule’s issuance.
3
In the State of Alaska there are two national forests—the
Tongass and the Chugach, both of which comprise vast areas of
the State.
The State of Alaska, with the support of numerous
intervenors, brought an action1 contesting the Roadless Rule’s
legality. The district court dismissed the case on statute-of-
limitations grounds. Our court reversed and remanded. Alaska
v. U.S. Dep’t of Agric., 772 F.3d 899 (D.C. Cir. 2014). On
remand, the district court granted the summary-judgment
motions of the Agriculture Department and its intervenor
supporters. Alaska and the plaintiff-intervenors noted appeals.
After briefing but before oral argument, the Agriculture
Department granted Alaska’s request to conduct a rulemaking
to determine—actually, to redetermine2—whether to exempt the
Tongass National Forest from the Roadless Rule. See Roadless
Area Conservation; National Forest System Lands in Alaska, 83
Fed. Reg. 44,252 (proposed Aug. 30, 2018). Our court ordered
the appeals stayed pending completion of the rulemaking.
On October 29, 2020, the Agriculture Department issued a
final rule exempting the Tongass from the Roadless Rule, the
1
This is Alaska’s second suit seeking to set aside the Roadless
Rule—Alaska first challenged the Rule shortly after its promulgation.
See Alaska v. U.S. Dep’t of Agric., No. 3:01-cv-00039-JKS (D. Alaska
Jan. 31, 2001). Alaska settled this suit after the Agriculture
Department agreed to issue an exemption to the Rule for the Tongass.
2
In 2003, the Agriculture Department exempted the Tongass
from the nationwide Roadless Rule. But a district court in 2011 struck
down the exemption. See Special Areas; Roadless Area Conservation;
National Forest System Lands in Alaska, 85 Fed. Reg. 68,688, 68,688-
89 (Oct. 29, 2020); Organized Vill. of Kake v. U.S. Dep’t of Agric.,
776 F. Supp. 2d 960, 976-77 (D. Alaska 2011).
4
reasons for which are not our concern in this appeal. See 36
C.F.R. § 294.50 (2021); Special Areas; Roadless Area
Conservation; National Forest System Lands in Alaska, 85 Fed.
Reg. at 68,688.
Alaska’s appellate brief focused entirely on the Roadless
Rule’s impact on the Tongass National Forest. But the Rule no
longer applies to the Tongass.
A “well-settled principle of law” is this: “when an agency
has rescinded and replaced a challenged regulation, litigation
over the legality of the original regulation becomes moot.”
Akiachak Native Cmty. v. U.S. Dep’t of Interior, 827 F.3d 100,
113 (D.C. Cir. 2016). Finding a case “plainly moot” when the
agency order has been “superseded by a subsequent . . . order”
is so routine that our court usually “would handle such a matter
in an unpublished order.” Freeport-McMoRan Oil & Gas Co.
v. FERC, 962 F.2d 45, 46 (D.C. Cir. 1992). We do not follow
that practice here because Alaska and the plaintiff-intervernors
mount two arguments against declaring their case moot.
I.
Alaska’s first argument invokes the “voluntary cessation”
doctrine. This doctrine “prevent[s] a private defendant from
manipulating the judicial process by voluntarily ceasing the
complained of activity, and then seeking a dismissal of the case,
thus securing freedom to ‘return to his old ways.’” Clarke v.
United States, 915 F.2d 699, 705 (D.C. Cir. 1990) (en banc);
see, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000).
The en banc court in Clarke added that it had “serious doubts”
about whether the “voluntary cessation” rationale applied to
cases like the one now before us: “it would seem inappropriate
for the courts either to impute such manipulative conduct to a
coordinate branch of government, or to apply against that branch
5
a doctrine that appears to rest on the likelihood of a
manipulative purpose.” 915 F.3d at 705. The court reiterated
that concern in National Black Police Ass’n v. District of
Columbia, 108 F.3d 346, 352 (D.C. Cir. 1997).
Even though the Roadless Rule does not apply to the
Tongass, Alaska believes that under the “voluntary cessation”
doctrine the case is not moot because the Rule might be
reimposed. Alaska points out that after the 2020 Presidential
election, the Agriculture Department announced its intention to
propose a new rulemaking that would “repeal or replace the
2020 Tongass Exemption” from the Roadless Rule.3
3
Letter from John L. Smeltzer, Attorney, Env’t & Nat. Res. Div.,
U.S. Dep’t of Just., to Mark J. Langer, Clerk, U.S. Court of Appeals
for the D.C. Cir. (Sept. 3, 2021). The letter goes on to state:
Upon publication, the proposed rule will be subject to
notice and comment proceedings. As part of such
proceedings—and before promulgating any new final rule
to re-impose the 2001 Roadless Rule or similar
management prescriptions to the Tongass National
Forest—USDA will consider environmental impact
reviews under the National Environmental Policy Act, 42
U.S.C. § 4332(2)(C), and timber market analysis under the
Tongass Timber Reform Act, 16 U.S.C. § 539d, that were
not available when USDA first promulgated the 2001
Roadless Road (without a Tongass Exemption). Unless
and until USDA issues a new final rule for inventoried
roadless areas within the Tongass National Forest, the
2020 Tongass Exemption will remain in effect and the
Roadless Rule “shall not apply to the Tongass National
Forest.” See 36 C.F.R. § 294.50 (2021).
6
We will deal with this prospect in a moment, but before we
do, a few words are in order about American Bankers Ass’n v.
National Credit Union Administration, 934 F.3d 649 (D.C. Cir.
2019). The American Bankers opinion came up in oral
argument. Neither Alaska nor the plaintiff-intervenors had
cited the case in their oppositions to the government’s
suggestion of mootness. This is understandable. Alaska pitched
its argument against mootness on the “voluntary cessation”
doctrine. But American Bankers was not by any stretch a
voluntary cessation case. The words “voluntary” and
“cessation” do not appear in the opinion.
The district court in American Bankers ordered the
contested regulatory provision to be “vacated and set aside.”
Order at 2, No. 16-2394 (D.D.C. Mar. 29, 2018), ECF No. 34.
So there was nothing “voluntary” about the federal agency’s
ceasing to apply that provision after the order issued. See Am.
Bar. Ass’n v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011);
Campbell v. Clinton, 203 F.3d 19, 34 n.14 (D.C, Cir. 2000)
(Randolph, J., concurring in the judgment); see also Mokdad v.
Sessions, 876 F.3d 167, 171 (6th Cir. 2017).4 It follows that the
rationale for the “voluntary cessation” doctrine as stated in the
en banc Clarke opinion and other decisions—that is, to prevent
manipulation of the judicial process—did not exist in American
Bankers. Nor did American Bankers hold that mere planned
reinstatement suffices to avoid mootness. That appeal remained
live because the district court’s judgment barred the agency
from its planned reinstatement of its former rule unless this
court reversed the vacatur. Here, by contrast, the Agriculture
4
American Bankers was therefore similar to a case in which
the defendant discontinued his conduct after the district court
issued an injunction forbidding the conduct. That obviously
would not moot the case on the defendant’s appeal.
7
Department voluntarily exempted the Tongass from the
Roadless Rule and may engage in another rulemaking to adjust
or repeal that exemption without any action on our part. Unlike
American Bankers, a ruling on the merits here would be
advisory.
We therefore move on to Alaska’s argument that the
prospect of a new regulation reimposing the Roadless Rule on
the Tongass saves the case from mootness. One problem with
this argument is that it contradicts not only Akiachak Native
Community and the many cases it cites, but also National
Wildlife Federation v. Hodel, 839 F.2d 694, 742 (D.C. Cir.
1988), a decision so directly on point that it deserves to be
quoted at length:
[T]he Secretary suspended the road regulations in their
entirety . . . [and] announced his intent “to propose new
regulations . . ..” Consequently, the Secretary now
argues that in light of the suspension, Industry’s
challenge is moot. Industry disagrees, asserting that
the Secretary clearly intends to repropose the same
regulation . . . and the issue is one “capable of
repetition, yet evading review” as in Southern Pacific
Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).
Industry’s claim notwithstanding, the Secretary’s
withdrawal of the regulation was not a clever
manipulation of regulatory and appellate procedure
designed to escape review; it was merely a prudent
response to the district court’s remand order. Although
the road reclamation requirement is certainly “capable
of repetition,” if and when the Secretary repromulgates
[it], the regulation will be reviewable at that time.
Unlike the ICC order at issue in Southern Pacific,
[these] regulations are in no danger of expiring before
8
judicial review is complete. It would be entirely
inappropriate for this court to do as Industry suggests
and issue an advisory opinion to guide the Secretary’s
rulemaking.
(citations omitted).
Here too it “would be entirely inappropriate for this court to
do as [Alaska] suggests and issue an advisory opinion to guide
the [Agriculture Department’s] rulemaking,” if there is one. Id.We cannot presume that any such future rulemaking will repeal
the Tongass exemption in toto. Doing so would be inconsistent
with the purpose of notice-and-comment rulemaking under the
Administrative Procedure Act, see, e.g., Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983); Make the Road N.Y. v. Wolf, 962 F.3d 612, 634
(D.C. Cir. 2020), and with the function of environmental impact
statements under NEPA, see, e.g., Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 351-52 (1989); Am. Rivers v.
FERC, 895 F.3d 32, 37-38 (D.C. Cir. 2018); Wyoming v. U.S.
Dep’t of Agric., 661 F.3d 1209, 1263-64 (10th Cir. 2011).
Moreover, to determine whether the Roadless Rule will be
reapplied to the Tongass would require us to speculate about
future actions by policymakers.5 The Rule itself has been
5
No entity of the federal government can ever guarantee that a
statute, a regulation, or an executive order, after being repealed or
withdrawn, will not be reenacted or reissued. Courts have noted that
structural obstacles to reimposing a challenged law—such as a full
repeal and the need to undertake new lawmaking—generally moot a
case. See, e.g., N.Y. State Rifle & Pistol Ass’n v. City of New York,
140 S. Ct. 1525, 1526 (2020) (per curiam); Boston Bit Labs, Inc. v.
Baker, 11 F.4th 3, 10-11 (1st Cir. 2021); Hous. Chron. Publ’g Co. v.
City of League City, 488 F.3d 613, 619 (5th Cir. 2007). Meanwhile,
9
controversial from its inception. See Organized Village of Kake v.
U.S. Dep’t of Agric., 795 F.3d 956, 979-81 (9th Cir. 2015) (en
banc) (M. Smith, J., dissenting). New notice-and-comment
rulemaking, and new environmental assessments, take time.
Intervening events, such as elections or changes in policy
priorities, bearing on these processes are unpredictable. The
content of any future regulation is currently unknowable.6
If, after another round of notice and comment and a fresh
environmental impact statement, the Agriculture Department
retracts the Tongass exemption, that new regulation “will be
reviewable at that time” in light of a new record. Nat’l Wildlife
Fed’n, 839 F.2d at 742.7 But in the meantime we will not take
actions that can be reversed at the stroke of a pen or otherwise face
minimal hurdles to re-enforcement can thwart mootness. See Roman
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68-69 (2020)
(per curiam); Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012, 2019 n.1 (2017). Here, the Agriculture Department
must proceed through notice-and-comment rulemaking. We will not
presume that the Department is violating the law by going into that
process with its mind made up. Nor will we impute voluntary
cessation where nothing suggests it. See, e.g., Trump v. Int’l Refugee
Assistance, 138 S. Ct. 353, 353 (2017) (mem.); see also Leopold v.
CIA, 987 F.3d 163, 167 & n.3 (D.C. Cir. 2021) (discussing “the dog
that did not bark”).
6
National Black Police Ass’n v. District of Columbia, 108 F.3d
at 349, in describing the “voluntary cessation” doctrine, quoted with
approval Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510
(9th Cir. 1994): “‘a statutory change . . . is usually enough to render
a case moot, even if the legislature possesses the power to reenact the
statute after the lawsuit is dismissed’ unless ‘it is virtually certain that
the repealed law will be reenacted’” (alteration in original).
7
See also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283(1982), which dealt with a city ordinance amended while the case was
10
the “wholly novel” action of “review[ing] regulations not yet
promulgated.” EPA v. Brown, 431 U.S. 99, 104 (1977) (per
curiam).
There is another reason for holding that the “voluntary
cessation” doctrine does not save the case from mootness. The
established law of this circuit is that “the ‘voluntary cessation’
exception to mootness has no play” when the agency did not act
“in order to avoid litigation.” Am. Bar. Ass’n, 636 F.3d at 648;
Oceana, Inc. v. Raimondo, No. 20-5362, 2021 WL 4771915, at
*1 (D.C. Cir. Oct. 1, 2021) (per curiam). Yet Alaska has not
argued, nor could it plausibly argue, that the 2020 Tongass
exemption was an effort of the Agriculture Department to
manipulate the judicial process. The Agriculture Department
could not have been seeking to “erase an unfavorable decision
from the books.” Nat’l Black Police Ass’n, 108 F.3d at 352. It
had no “unfavorable decision” to erase. The Department
prevailed in the district court. The later rulemaking that
produced the 2020 Tongass exemption stemmed from Alaska’s
petition. In these circumstances it is senseless to suppose that
the defendants acted in order to manipulate the judicial process.
II.
Alaska’s other basis for claiming that the case is not moot
deals with the Chugach National Forest. In the extensive
judicial proceedings after promulgation of the 2001 Roadless
Rule, the Chugach has not been an object of attention. The
focus instead has been on the Rule’s impact on the Tongass, on
before the Court on writ of certiorari. The Court later explained that
its decision to reach the merits rested on “the principle that a party
should not be able to evade judicial review, or to defeat a judgment,
by temporarily altering questionable behavior.” City News & Novelty,
Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001).
11
its lumber industry, and on the communities dependent on its
resources. See, e.g., Organized Village of Kake, 795 F.3d at
967-69; Organized Village of Kake v. U.S. Dep’t of Agric., 746
F.3d 970, 978-80 (9th Cir. 2014). Even so, Alaska now
contends that the continuing application of the Rule to the
Chugach keeps its case alive. We think not.
Alaska has failed to demonstrate—as opposed to allege—an
injury in fact regarding the Chugach. This case reached the
summary-judgment stage and, yet, the record before us is almost
completely silent on what injury, if any, Alaska suffers from the
Roadless Rule’s application to the Chugach. Alaska points to
allegations in its complaint about harms deriving from the
Rule’s operation in the Chugach. But it is past time for Alaska
to show that it is suffering an injury in fact. See McNutt v. Gen.
Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). By
the summary-judgment stage, “standing turns not on allegations
in the complaint but on ‘specific facts’ established by evidence.”
Democratic Senatorial Campaign Comm. v. FEC, 139 F.3d 951,
952 (D.C. Cir. 1998) (per curiam) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992)).
Of course, showing an injury-in-fact is a lower barrier than
prevailing on the merits. See, e.g., Bell v. Hood, 327 U.S. 678,
682 (1946); Gerber v. Herskovitz, 14 F.4th 500, 504, 506-08
(6th Cir. 2021). And states have greater leeway in showing
standing given the “special solicitude” they receive for matters
involving their “quasi-sovereign interests.” Massachusetts v.
EPA, 549 U.S. 497, 520 (2007). Nonetheless, Alaska had to
show actual harm—not merely allege it.8 Alaska disregarded
8
We will not credit the declaration of John Chris Mainsch and
several other exhibits submitted in support of the appellants’
opposition to the motions to dismiss, discussing the potential harm to
Alaska lands emanating from the Chugach. Entertaining these
12
the Chugach in its post-complaint presentations to the district
court and to our court.9 Its efforts to revive those arguments
against the backdrop of the Chugach therefore must fail.
* * *
Alaska’s claims regarding application of the Roadless Rule
to the Tongass National Forest are moot. We therefore dismiss
these claims and vacate those portions of the district court’s
decision regarding the Tongass. See United States v.
Munsingwear, Inc., 340 U.S. 36, 39-40 (1950); Pharmachemie
B.V. v. Barr Labs., Inc., 276 F.3d 627, 634 (D.C. Cir. 2002).10
We dismiss the remaining claims on appeal for lack of standing.
So ordered.
exhibits, which were not presented to the district court, would
effectively be supplementing the appellate record. We decline to do
this given Alaska’s overall failure to maintain claims regarding the
Chugach. See Morgan Drexen, Inc. v. CFPB, 785 F.3d 684, 690 &
n.2 (D.C. Cir. 2015) (rejecting a request to supplement the appellate
record with evidence supporting standing in part because doing so
“would undermine the district court’s factfinding role”).
9
Alaska mentioned the Chugach only three times opening to this
court, and only in passing.
10
We deny defendant-intervenors’ request to vacate our decision
regarding the statute-of-limitations issue, Alaska v. U.S. Department
of Agriculture, 772 F.3d 899 (D.C. Cir. 2014). That decision did not
reach the merits and has no discernable effect on the merits of
defendant-intervenors’ claims. See Columbian Rope Co. v. West, 142
F.3d 1313, 1318 (D.C. Cir. 1998) (explaining that Munsingwear
vacatur is appropriate where a party “who cannot gain direct review
on appeal because of mootness, might be precluded from relitigating
the issues in a future proceeding”).