Wilbur Slockish v. Usdot

FILED
NOT FOR PUBLICATION
NOV 24 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILBUR SLOCKISH, Hereditary Chief No. 21-35220
of the Klickitat/Cascade Tribe; CAROL
LOGAN, a resident of Oregon, and an D.C. No. 3:08-cv-01169-YY
enrolled member of the Confederated
Tribes of the Grand Ronde; CASCADE
GEOGRAPHIC SOCIETY, an Oregon MEMORANDUM*
nonprofit corporation; MOUNT HOOD
SACRED LANDS PRESERVATION
ALLIANCE, an unincorporated nonprofit
association,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF
TRANSPORTATION; FEDERAL
HIGHWAY ADMINISTRATION, an
Agency of the Federal Government; U.S.
DEPARTMENT OF THE INTERIOR;
BUREAU OF LAND MANAGEMENT,
an Agency of the Federal Government;
ADVISORY COUNCIL ON HISTORIC
PRESERVATION, an Agency of the
Federal Government,
Defendants-Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Argued and Submitted November 16, 2021
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.
Plaintiffs Hereditary Chief Wilbur Slockish, Carol Logan, Cascade
Geographic Society, and Mount Hood Sacred Lands Preservation Alliance appeal
from the district court’s grants of summary judgment to Defendants United States
Department of Transportation, Federal Highway Administration (“FHWA”),
United States Department of the Interior, Bureau of Land Management (“BLM”),
and Advisory Council on Historic Preservation.
Plaintiffs allege that Defendants’ actions with respect to a 0.74-acre site
located within a highway expansion project completed by the Oregon Department
of Transportation (“ODOT”) violated the Religious Freedom Restoration Act, the
Free Exercise Clause of the First Amendment, the National Environmental Policy
Act, the National Historic Preservation Act, the Federal Land Policy and
Management Act, and Section 4(f) of the Department of Transportation Act. We
conclude that this appeal is moot and that we therefore lack jurisdiction.
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“The case or controversy requirement of Article III . . . deprives federal
courts of jurisdiction to hear moot cases.” Native Vill. of Nuiqsut v. BLM, 9 F.4th
1201, 1208 (9th Cir. 2021) (quoting NAACP, W. Region v. City of Richmond, 743
F.2d 1346, 1352 (9th Cir. 1984)). “A case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing
party.” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)
(citation and quotations omitted). A case is not moot if “there can be any effective
relief.” Wild Wilderness v. Allen, 871 F.3d 719, 724 (9th Cir. 2017) (emphasis in
original) (quoting Or. Nat. Res. Council v. BLM, 470 F.3d 818, 820 (9th Cir.
2006)).
ODOT, which owns the right-of-way for the highway that encompasses the
site, was dismissed from this case in 2012 based on Eleventh Amendment
immunity. The remaining Defendants are federal agencies that cannot order the
outright removal of the challenged highway expansion. The district court
concluded that the court could nonetheless “craft some relief that would mitigate
Plaintiffs’ injury.” Plaintiffs specifically identify the relief that they seek. That
relief falls short of removing the highway expansion, but it contemplates
restoration of highway access to E. Wemme Trail Road, replacement of vegetation,
reconstruction of the rock pile, removal of the sloped earthen embankment over the
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site, and removal of the guard rail. This relief would partially restore the site to
the status quo ante, but this relief would make changes to aspects of the highway
project that ODOT designed and implemented based on its judgment that those
aspects improved highway safety. Because ODOT has been dismissed from this
suit, none of the Defendants has authority to make the changes sought by Plaintiffs.
Pursuant to an easement previously granted by FHWA, ODOT owns a right-
of-way easement over BLM land. The easement encompasses the entire site of the
highway widening project. The easement reserves limited rights for BLM to use or
authorize the use of the highway for non-highway purposes, but it expressly
precludes BLM from doing so when it would “impair the full use and safety of the
highway” or would otherwise be “inconsistent with the provisions of Title 23 of
the United States Code.”
The language of the easement, in combination with ODOT’s dismissal,
renders the case moot. All of the relief sought by Plaintiffs implicates highway
safety. As ODOT and FHWA explain in the Environmental Assessment, the
removal of highway access to E. Wemme Trail Road, the removal of vegetation
and the rock pile, the addition of the earthen embankment, and the addition of the
guard rail were all conducted for the purpose of improving the safety of the
highway. As a result, BLM’s limited reservation of rights to use or authorize the
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use of the highway for non-highway purposes would not permit it to undo those
actions.
Plaintiffs’ claims for declaratory relief are also moot. Declaratory relief
must correspond with a separate remedy that will redress Plaintiffs’ injuries.
California v. Texas, 141 S. Ct. 2104, 2115-16 (2021) (explaining that the
Declaratory Judgment Act “alone does not provide a court with jurisdiction,” and
that courts must “look elsewhere to find a remedy that will redress plaintiffs’
injuries”). “[A] declaratory judgment may not be used to secure judicial
determination of moot questions.” Nome Eskimo Cmty. v. Babbitt, 67 F.3d 813,
816 (9th Cir. 1995) (quotations omitted) (quoting Native Vill. of Noatak, 38 F.3d
1505, 1514 (9th Cir. 1994)). Plaintiffs’ claims for declaratory relief that
correspond to their claims for injunctive relief are therefore moot.
Plaintiffs’ claim for damages is barred by federal sovereign immunity. See
Price v. United States, 174 U.S. 373, 375-76 (1899).
Because we cannot order any effective relief, this appeal is moot. Although
Defendants’ “burden of demonstrating mootness is a heavy one,” that burden is
carried here. Nw. Env’t Defense Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.
1988) (citing Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
DISMISSED.
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