Front Range Equine, et al v. Vilsack, et al

Filing

[10260946] Vacated and Dismissed; Terminated on the merits after oral hearing; Written, signed, published; Judges Bacharach, McKay (authoring) and McHugh. Mandate to issue. [13-2187]

FILED
Appellate Case: 13-2187

Document: 01019409970

United States Court of Appeals
Date Filed: 04/03/2015 Circuit 1
Tenth Page:

April 3, 2015
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

FRONT RANGE EQUINE RESCUE;
THE HUMANE SOCIETY OF THE
UNITED STATES; MARIN HUMANE
SOCIETY; HORSES FOR LIFE
FOUNDATION; RETURN TO
FREEDOM; RAMONA CORDOVA;
KRYSTLE SMITH; CASSIE GROSS;
DEBORAH TRAHAN; BARBARA
SINK; CHIEF DAVID BALD EAGLE;
CHIEF ARVOL LOOKING HORSE;
TANYA LITTLEWOLF; ROXANNE
TALLTREE-DOUGLAS;
FOUNDATION TO PROTECT NEW
MEXICO WILDLIFE; SANDY
SCHAEFER,
Plaintiffs - Appellants,
and

No. 13-2187

STATE OF NEW MEXICO,
Plaintiff Intervenor Appellant,
v.
TOM VILSACK, Secretary, U.S.
Department of Agriculture; ELISABETH
A. HAGEN, Under Secretary for Food
Safety, U.S. Department of Agriculture;
ALFRED A. ALMANZA, Administrator,
Food Safety and Inspection Service, U.S.
Department of Agriculture,
Defendants - Appellees,
and

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RESPONSIBLE TRANSPORTATION,
LLC; CONFEDERATED TRIBES AND
BANDS OF THE YAKAMA NATION;
RAINS NATURAL MEATS; VALLEY
MEAT COMPANY, LLC; CHEVALINE,
LLC; INTERNATIONAL EQUINE
BUSINESS ASSOCIATION; NEW
MEXICO CATTLE GROWERS’
ASSOCIATION; SOUTH DAKOTA
STOCKGROWERS ASSOCIATION;
RANCHERS–CATTLEMEN ACTION
LEGAL FUND UNITED
STOCKGROWERS OF AMERICA;
MARCY BRITTON; BILL AND JAN
WOOD; LEROY WETZ; SHIRLEY
WETZ; DOUG JOHNSON; JUDY
JOHNSON; KUJYUKURI, LTD;
UNITED HORSEMEN; SCENIC VIEW
RANCH,
Defendants Intervenors Appellees.

AMERICAN FARM BUREAU
FEDERATION; NATIONAL
CATTLEMEN’S BEEF ASSOCIATION;
NEW MEXICO FARM AND
LIVESTOCK BUREAU,
Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:13–CV–00639–MCA–RHS)

Bruce A. Wagman of Schiff Hardin LLP, San Francisco, California (Rocky N. Unruh,
Schiff Hardin LLP, San Francisco, California, Ari Biernoff, Office of the Attorney
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General for the State of New Mexico, and Brian Egolf of Egolf+Ferlic+Day, LLC, Santa
Fe, New Mexico, with him on the briefs) for Plaintiffs–Appellants.
Mark R. Haag, Attorney, Environmental and Natural Resources Division, U.S.
Department of Justice (Thomas N. Bolick, Attorney–Advisor, Office of the General
Counsel, U.S. Department of Agriculture, of counsel; Robert G. Dreher, Acting Assistant
Attorney General, and Andrew A. Smith and Alison D. Garner, Attorneys,
Environmental and Natural Resources Division, U.S. Department of Justice, with him on
the briefs), Washington, D.C., for Defendants–Appellees.
Karen Budd-Falen and Kathryn Brack Morrow, Cheyenne, Wyoming; A. Blair Dunn and
Patrick J. Rogers, Albuquerque, New Mexico, for Defendants–Intervenors–Appellees.
Jay C. Johnson and Kathryn Kusske Floyd of Venable LLP, Washington, D.C., for Amici
Curiae.

Before BACHARACH, McKAY, and McHUGH, Circuit Judges.

McKAY, Circuit Judge.

This appeal involves environmental challenges to a federal agency’s decisions to
grant inspection services for the slaughter and processing of horses and other equines at
three slaughterhouses. In the proceedings below, the district court affirmed the agency’s
grants of inspection. Plaintiffs—various organizations and individuals opposed to horse
slaughter—then filed this appeal to challenge the district court’s decision. However, one
slaughterhouse subsequently withdrew its application for inspection, a second
slaughterhouse surrendered its grant of equine inspection in order to obtain a grant of
inspection for cattle slaughter, and the third slaughterhouse failed to successfully
challenge a state permitting decision to allow only non-equine slaughter at the facility.
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Moreover, the current congressional appropriations act prohibits funding for equine
slaughter inspections. We accordingly dismiss this appeal and vacate the district court’s
decision based on mootness.
I.
Under the Federal Meat Inspection Act, “amenable species” of
livestock—including horses, mules, and other equines—may be slaughtered for human
consumption only after undergoing federal inspection. 21 U.S.C. § 603(a). Accordingly,
slaughter facilities wishing to conduct equine slaughter operations must apply for a grant
of inspection services from the Food Safety Inspection Service, a branch of the U.S.
Department of Agriculture. By regulation, equines may not be slaughtered at the same
facility as other livestock. 9 C.F.R. § 305.2(b). Thus, a grant of inspection for equines
will cause the agency to withdraw any previous grant of inspection for other species, and,
conversely, a grant of non-equine inspection causes the withdrawal of any previous
equine grant. (See Appellants’ App. at 411.)
Between fiscal years 2006 and 2011, Congress prohibited the use of appropriated
funds for ante-mortem inspection of equines, thus effectively preventing commercial
horse slaughter from occurring in the United States. However, the 2012 and 2013
appropriations acts did not include this prohibition, and FSIS accordingly began moving
forward with plans to resume federal inspection of commercial equine slaughter.
In June 2013, FSIS issued Directive 6130.1, which provides instructions to FSIS
inspectors on how to perform ante-mortem and post-mortem inspections of equine for
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slaughter. Among other things, the Directive provides for intensified random-drugresidue testing of equines and explains how such testing should be conducted.
After issuing the Directive, FSIS issued grants of inspection for equine processing
at two slaughterhouses—Valley Meat Company of Roswell, New Mexico, and
Responsible Transportation LLC of Sigourney, Iowa. The agency also announced it was
prepared to grant inspection to a third slaughterhouse, Rains Natural Meats of Gallatin,
Missouri, but it did not issue the grant at that time because the district court had already
issued a temporary restraining order in this case.
Following FSIS’s issuance of the grants of inspection to the first two
slaughterhouses, Appellants commenced this federal action. In their complaint,
Appellants claimed the agency violated the National Environmental Policy Act by
preparing the Directive and issuing the grants of inspection without first preparing an
Environmental Impact Statement or Environmental Assessment to evaluate the possible
environmental impacts of equine slaughter operations. The district court initially granted
a temporary restraining order against the agency, but, after further consideration, it
concluded that the agency was not required to prepare an EIS or EA before issuing the
Directive and the grants of inspection. The court accordingly vacated the restraining
order and dismissed the action. Appellants then filed this appeal.
Several recent developments have significantly changed the status of this
litigation. First, Congress again included a funding prohibition for equine inspection
services in its 2014 and 2015 appropriations acts. Second, Valley Meat Company
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decided to abandon all plans to slaughter equines and asked FSIS to withdraw its grant of
inspection. Third, Responsible Transportation LLC voluntarily surrendered its grant of
inspection for equines in order to obtain cattle slaughter inspection services instead.
Finally, the Missouri Department of Natural Resources issued Rains Natural Meats a
permit allowing the processing of only non-equine animals. Although Rains filed an
administrative appeal from this decision, it subsequently chose to voluntarily dismiss the
appeal and continue or resume non-equine slaughter operations. Accordingly, like
Responsible Transportation, Rains is currently operating under a non-equine grant of
federal inspection.
II.
Based on all of these factual developments, we find the case to be moot, and we
therefore dismiss the appeal for lack of jurisdiction.
“Article III’s requirement that federal courts adjudicate only cases and
controversies necessitates that courts decline to exercise jurisdiction where the award of
any requested relief would be moot—i.e. where the controversy is no longer live and
ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994). A case is
moot where “the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome,” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396
(1980), or where the “relief sought can no longer be given or is no longer needed,” In re
Jennings Oil Co., 4 F.3d 887, 889 (10th Cir. 1993). Stated differently, “[t]he crucial
question is whether granting a present determination of the issues offered will have some
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effect in the real world.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1110 (10th Cir. 2010) (internal quotation marks omitted).
In this case, the relief Appellants sought was to set aside the grants of equine
inspection to Valley Meat and Responsible Transportation, as well as the intended grant
of equine inspection to Rains Natural Meats. The parties are in agreement that Valley
Meat’s voluntary withdrawal of its grant of inspection and its decision to abandon all
plans for equine slaughter have mooted the claims related to this facility. As for the other
two grants, Appellants assert that their challenges to these grants have likewise become
moot due to subsequent developments, while Appellees argue that there remains a live
case or controversy regarding these grants. After due consideration, we agree with
Appellants that their challenges to all three of the grants of inspection are now moot
because a present determination of the issues presented would have no real-world effect.
It is undisputed that Responsible Transportation surrendered its grant of equine
inspection in order to process non-equine species at its facility. Nevertheless, the federal
Appellees argue that Responsible Transportation “may seek to switch back to equines
after the funding ban expires,” (Appellees’ Br. at 27 n.10). They suggested at oral
argument that the surrendered grant of inspection is still relevant to the real world
because, if Congress again removes the funding ban and Responsible Transportation then
re-applies for an equine grant of inspection, the agency may rely on some of its
determinations relating to the initial grant in order to conduct a much more limited review
of the new application. However, we are persuaded the contingent possibility that
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Responsible Transportation might apply for a new grant of equine inspection does not
give rise to a current case or controversy, regardless of whether the former grant could
have some future influence on the agency’s consideration of a hypothetical new request
for equine inspection. If Congress chooses to fund equine inspection again, if
Responsible Transportation then chooses to apply for a new grant of equine inspection,
and if FSIS decides to issue a grant of inspection to Responsible Transportation, then an
active case or controversy may arise—and it may even resurrect some of the issues that
are no longer live in this case. However, this speculative possibility of a future
controversy does not provide us with Article III jurisdiction to evaluate Appellants’
challenges to a surrendered grant of inspection that now has no force or effect in the real
world. “We are without power to render an advisory opinion on a question simply
because we may have to face the same question in the future.” NLRB v. Globe Sec.
Servs., Inc., 548 F.2d 1115, 1118 (3d Cir. 1977).
As for Rains Natural Meats, it is undisputed this facility is currently processing
non-equine species and lacks the necessary state permits to switch to equine slaughter,
even if the funding ban ends and FSIS goes through with its intended plans to issue Rains
a grant of equine inspection. In their brief, the federal Appellees argue that Appellants’
challenge to the intended grant of equine inspection to Rains “may be become moot if the
state proceedings ultimately prevent [Rains] from slaughtering horses for human
consumption,” but they contend that “the final outcome of those state proceedings is
unknown.” (Appellees’ Br. at 27.) However, Appellees present neither argument nor
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authority to refute Appellants’ contention that the state’s decision not to allow equine
processing at Rains’ facility became final when Rains decided to voluntarily dismiss its
administrative appeal of the permitting decision. As with Responsible Transportation, it
is possible that a live case or controversy may arise in the future if Congress decides to
allow funding for equine inspections, Rains Natural Meats decides to switch from nonequine slaughter to equine slaughter, the state permitting authority changes its decision,
and FSIS follows through with its original plans of issuing a grant of equine inspection to
Rains. However, this contingent possibility does not defeat the current mootness of
Appellants’ challenges to an intended grant of inspection that was not issued and would
have no current effect in the real world even if it were due to both the congressional
funding ban and the final state permitting decision. Cf. Jones v. Temmer, 57 F.3d 921,
923 (10th Cir. 1995) (“[D]efendants assert that the claims are not moot because the
Colorado legislature remains free to reinstate the old law at a later date. We view this
possibility as too conjectural and speculative to avoid a finding of mootness.”).
We are not persuaded by Appellees’ argument that this case falls under the
“narrow exception” to the mootness doctrine for issues “capable of repetition, yet evading
review.” Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220, 1229 (10th Cir. 2012)
(internal quotation marks omitted). Although it is possible the legal issues raised in this
case may arise again, there is no evidence these issues will evade judicial review in the
future. See Rio Grande Silvery Minnow v. Keys, 355 F.3d 1215, 1220 (10th Cir. 2004).
Appellees speculate that Congress may again open up a brief window in which funding
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for equine inspections will be permitted, only to slam this window shut again before
challenges to environmental decisions regarding equine inspections can be fully litigated
in court proceedings. However, this bare speculation cannot substitute for actual
“evidence from which we might infer that this governmental behavior is necessarily of
short duration.” Wyoming v. U.S. Dep’t of Interior, 674 F.3d at 1229 (internal quotation
marks, ellipses, and brackets omitted); cf. United States v. Seminole Nation, 321 F.3d 939,
943 (10th Cir. 2002) (applying the “capable of repetition, yet evading review” exception
to review challenges to temporary regulatory orders that were necessarily of short
duration because, by statute, they would cease to be in effect no later than ninety days
after their issuance). Similarly, we will not invoke this narrow exception to the mootness
doctrine based on Appellees’ speculation that slaughterhouses in future cases may again
switch to non-equine slaughter while litigating the legality of their equine grants of
inspections. We are simply not convinced that the controversies involved in this case are
“by nature, so ephemeral as to elude the processes of judicial review.” Beattie v. United
States, 949 F.2d 1092, 1094 n.2 (10th Cir. 1991); cf. DeFunis v. Odegaard, 416 U.S. 312,
319 (1974) (“Moreover, just because this particular case did not reach the Court until the
eve of the petitioner's graduation from law school, it hardly follows that the issue he
raises will in the future evade review.”).
Finally, Appellees argue that the case is not moot because Appellants’ complaint
challenged the Directive which provided instructions for federal equine inspections as
well as the equine inspection grants themselves. However, since the only grants of equine
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inspection issued by FSIS have been withdrawn or surrendered, the intended grant to
Rains has been made ineffective by a state permitting decision, and Congress has
prohibited the funding of equine inspections. Any present determination of the
controversy regarding the Directive would have no effect in the real world. Appellants’
challenges to the Directive were based on the alleged environmental effects of the equine
slaughter operations whose inspections would have been conducted according to the
Directive’s instructions. Since the resumption of equine slaughter operations is now only
speculative, however, Appellants’ challenges to the Directive do not present a current
case or controversy. If Congress decides to fund equine inspections again, and if FSIS
issues a grant of inspection to a slaughterhouse that is able to obtain the necessary state
permits to operate, the Directive may then have an effect on the real world. At this time,
however, we lack Article III jurisdiction to consider Appellants’ challenges to the
Directive—an agency document which is not currently in use and which has no definite
future. We therefore conclude that this case is moot in its entirety.
Appellants contend we should vacate the district court’s judgment because
appellate review of the district court’s decision has been prevented by mootness that was
out of Appellants’ control. Vacatur is generally appropriate when a case becomes moot
because of happenstance or the prevailing party’s unilateral action, based on the
underlying “equitable principle [that] a party should not have to bear the consequences of
an adverse ruling when frustrated by the vagaries of the circumstances.” Rio Grande
Silvery Minnow, 355 F.3d at 1221 (internal quotation marks omitted); see also Amoco Oil
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Co. v. U.S. EPA, 231 F.3d 694, 698 (10th Cir. 2000); Jones, 57 F.3d at 923. The issues in
this appeal were mooted by unilateral decisions made by the slaughterhouse
Intervenors–Appellees and by various government officials, not by any action of
Appellants. We therefore agree with Appellants that vacatur of the district court’s
judgment is appropriate.
III.
For the foregoing reasons, the district court’s judgment is VACATED, and the
appeal is DISMISSED as moot.

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