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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Humane Society v. Kempthorne (D.C.Cir.): another judicial decision applying mootness and vacatur in ESA context.

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Humane Society v. Kempthorne and Safari Club, Nos. 06-5396 & 06-5397 (D.C. Cir., June 3, 2008).  In this case, environmentalists sought to preserve a district court victory on the regulation of the gray wolf even though the wolf was delisted during the ongoing appellate litigation.  The D.C. Circuit Court vacated the lower court's opinion, relying in part upon an analysis of the equities and the conclusion that "the orderly operation of the appellate system is not being frustrated."

Photo of the grey wolf by Kate Cassidy from Wisconsin DNR.

BACKGROUND: Interior Secretary Kempthorne and Safari Club initially appealed a district court judgment enjoining the FWS “from authorizing the lethal take of any more gray wolves for depredation control purposes” by the Wisconsin Department of Natural Resources (Wisconsin DNR).  See Humane Soc’y of the United States v. Kempthorne, CV06-1279, slip op. at 34 (Aug. 9, 2006); id. Order (Sept. 6, 2006). The Humane Society of the United States (Humane Society) and other environmental organizations had sought the injunction because, in their view, the gray wolf, as an endangered species, could not be the object of a lethal depredation control program under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. The district court agreed.

RULING: However, while the appeal was pending, Interior removed the gray wolf population located in the Western Great Lakes Region (which includes Wisconsin) from the endangered species list.The parties agree that the delisting moots the appeal. The federal appellants and the Safari Club have moved to vacate the district court judgment and the Humane Society opposes vacatur...  We grant the appellants’ motion and vacate the district court judgment.

NOTEWORTHY EXCERPTS:  “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 English v. Arizona, 520 U.S. 43, 71 (1997) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)) (alterations in Arizonans); see also United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (en banc) (per curiam) (“When a case becomes moot on appeal, whether it be during initial review or in connection with consideration of a petition for rehearing or rehearing en banc, this court generally vacates the District Court’s judgment, vacates any outstanding panel decisions, and remands to the District Court with direction to dismiss.”). “Vacatur ‘clears the path for future relitigation’ by eliminating a judgment the loser was stopped from opposing on direct review.” Arizonans, 520 U.S. at 71 (quoting Munsingwear, 340 U.S. at 40)...

Moreover, “vacatur is an equitable remedy,” Columbian Rope Co. v. West, 142 F.3d 1313, 1318 n.5 (D.C. Cir. 1998) (citing Bancorp, 513 U.S. at 25), and here the equities favor vacatur. This is “not a case in which a litigant is attempting to manipulate the courts to obtain the relief it was not able to win in the judicial system.” Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1213 (10th Cir. 2005) (vacating district court judgment mooted by promulgation of U.S. Forest Service regulation because vacatur was sought by non-governmental intervenors). And “because the party seeking appellate relief is not the party responsible for mooting the case, the orderly operation of the appellate system is not being frustrated.” Id.11 Accordingly, the judgment of the district court is vacated.