Sierra Club Foundation v. Department of Transp.

563 F.3d 897 (2009)

THE SIERRA CLUB FOUNDATION; Public Citizen; Environmental Law Foundation; Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, Petitioners,
v.
DEPARTMENT OF TRANSPORTATION; Federal Motor Carrier Safety Administration; Raymond L. La-Hood,^[*] Secretary of Transportation; Rose A. McMurray,^[**] Acting Administrator of the Federal Motor Carrier Safety Administration; United States of America, Respondents.
Owner-Operator Independent Drivers Association, Inc., Petitioner,
v.
Federal Motor Carrier Safety Order Administration, Respondent.

Nos. 07-73415, 07-73987.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2008. Filed April 20, 2009.

Jonathan Weissglass, Altshuler Berzon LLP, San Francisco, CA, for petitioners The Sierra Club Foundation, Public Citizen, Environmental Law Foundation, and Brotherhood of Teamsters and Auto Truck Drivers Local No. 70.

Paul D. Cullen, Sr., The Cullen Law Firm, Washington, D.C., for petitioner Owner-Operator Independent Drivers Association, Inc.

Irene M. Solet, United States Department of Justice, Civil Appellate Division, Washington, DC, for the respondents.

Before: D.W. NELSON, ANDREW J. KLEINFELD and HAWKINS, Circuit Judges.

ORDER

Petitioners Sierra Club, et al., and Owner-Operator Independent Drivers Association petition this court for review of the notice of intent by the Federal Motor Carrier Safety Administration ("FMCSA") to proceed with a pilot program to authorize up to 100 Mexico-domiciled carriers to operate beyond the border zone. We dismiss because this petition is now moot.

While the petition was pending, Congress passed and the President signed into law the Omnibus Appropriations Act, 2009, Pub.L. 111-8, 123 Stat. 524. Section 136 of that legislation prohibits the use of funds appropriated under it "to establish, implement, continue, promote or in any way permit" a demonstration program like the one at issue in this case.

Pursuant to § 136, the FMCSA has terminated the existing demonstration program. Even if Congress does not impose the same limitation in future fiscal years, any new pilot program the FMCSA might initiate in the future would likely present different questions of statutory and regulatory requirements than the now terminated program and would likely not fall into the "yet evading review" category. Accordingly, the petition for review is moot.

DISMISSED.

NOTES

[*] Raymond L. LaHood is substituted for his predecessor, Mary E. Peters, as Secretary of Transportation. Fed. R.App. P. 43(c)(2).

[**] Rose A. McMurray, Acting Administrator, is substituted for her predecessor, John H. Hill, who was the Administrator of the Federal Motor Carrier Safety Administration. Fed. R.App. P. 43(c)(2).