Mootness still lives in the Ninth Circuit
Center for Biological Diversity v. Lohn, 2007 WL 4532197, Case No. 05-35638(9th Cir. Dec. 27, 2007)(where agency already listed a species -- the very relief sought by a plaintiff -- the plaintiff could not escape the mootness doctrine by opposing the methods by which the listing decision was reached, and no case or controversy existed, and no exception to the case or controversy doctrine applied.)
BACKGROUND: In 2002, the National Marine Fisheries Service (NMFS) or Service issued a proposed ruling that concluded listing the Southern Resident population of killer whales was “not warranted” because the Southern Resident was not “significant” to its taxon. The Center for Biological Diversity challenged that decision, and in 2003 the district court (W.D.Wash.) set aside the Service’s “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under the Service’s “distinct population segment” policy. The Service contended that this case is now moot because it has, since the district court’s decision, issued a proposed rule that recommended listing the Southern Resident as a threatened species and ultimately has issued a final rule listing the Southern Resident as an endangered species. CBD, however, still opposed the action because it applied the DPS policy
Image of southern resident population orcas from NMFS
RULING: The Service’s issuance of a final rule listing the Southern Resident as an endangered species rendered this case moot.
First, the Ninth Circuit held that it could not offer injunctive relief, because the Service had issued its final rule listing the Southern Resident as an endangered species. See Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978) (“Where the activities sought to be enjoined have already occurred, and the appellate courts cannot undo what has already been done, the action is moot.”).
Second, the Ninth Circuit held that Declaratory relief could not address any live controversy. "That the DPS Policy might adversely affect the Southern Resident’s endangered species status or the Service’s listing determination of certain other killer whale populations at some indeterminate time in the future is too remote and too speculative a consideration to save this case from mootness."
Finally, the Court rejected all exceptions to the mootness doctrine. The Ninth Circuit rejected the “collateral legal consequences” exception, citing Burrell, 415 F.3d at 999 (holding that a party “may not invoke as an exception to the mootness doctrine the specter of continuing legal harm from res judicata or collateral estoppel arising from his mooted claims when such harm is merely hypothetical and speculative”). The Court further held that the action, even if capable of repetition, would not evade review, because the Service’s application of the DPS Policy to deny a petition to list a species as endangered, the alleged injury here, is not “a type inherently limited in duration such that it is likely always to become moot before federal court litigation is completed.” Finally, since the Service issued the final rule listing the Southern Resident as an endangered species after reexamining the listing petition, as ordered by a district court, the Ninth Circuit held that the “voluntary cessation” exception to mootness does not apply.
The complete opinion can be found online through the website of the Ninth Circuit.
Full Disclosure: during his tenure with the U.S. Department of Justice, the author participated as counsel in this matter.