Alaska Wilderness League v. Sally Jewell

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.
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