Hornbeck Offshore Services, et al v. Ken Salazar, et al

Filing

UNPUBLISHED OPINION FILED. [10-30585 Dismissed ] Judge: EGJ , Judge: HRD , Judge: JLD Mandate pull date is 11/22/2010; mooting (IN LIGHT OF THE OPINION) motion to file amicus brief [6605787-2]; mooting (IN LIGHT OF THE OPINION) motion to vacate the judgment of the district court filed by Appellants United States Department of Interior, Ken Salazar, Secretary, Department of Interior, Bureau of Ocean Energy Management, Regulation and Enforcement and Mr. Michael R. Bromwich [6579192-2] [10-30585]

Hornbeck Offshore Services, et al v. Ken Salazar, et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 29, 2010 N o . 10-30585 Lyle W. Cayce Clerk

H O R N B E C K OFFSHORE SERVICES, L.L.C.; BEE MAR - WORKER BEE, L .L .C .; NORTH AMERICAN FABRICATORS, L.L.C.; BEE MAR, L.L.C.; O F F S H O R E SUPPORT SERVICES, L.L.C.; ET AL, P la in t iffs - Appellees v. K E N N E T H LEE SALAZAR, also known as Ken Salazar, In His Official C a p a c it y as Secretary, United States Department of the Interior; UNITED S T A T E S DEPARTMENT OF THE INTERIOR; MICHAEL R. BROMWICH, I n His Official Capacity as Director, Bureau of Ocean Energy Management, R e g u la t io n and Enforcement; BUREAU OF OCEAN ENERGY M A N A G E M E N T , REGULATION AND ENFORCEMENT, formerly known as M in e r a ls Management Service, D e fe n d a n t s - Appellants F L O R I D A WILDLIFE FEDERATION; CENTER FOR BIOLOGICAL D I V E R S I T Y ; NATURAL RESOURCES DEFENSE COUNCIL; SIERRA C L U B ; DEFENDERS OF WILDLIFE, I n t e r v e n o r Defendants - Appellants

A p p e a ls from the United States District Court for the Eastern District of Louisiana

B e fo r e JOLLY, DEMOSS, and DENNIS, Circuit Judges.

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No. 10-30585 P E R CURIAM:* B e fo r e this court is Appellants' appeal of the district court's preliminary in ju n c t io n enjoining enforcement of the government's moratorium on deepwater d r illin g in the Gulf of Mexico. In order for this court to maintain appellate jurisdiction over Appellants' a p p e a l of the preliminary injunction, it must be able to provide the parties with s o m e type of effective relief. See Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5 t h Cir. 1998) (citation omitted). The order preliminarily enjoining the m o r a t o r iu m that was issued on May 28, 2010, is the sole subject of the appeal. The May 28 moratorium has been expressly rescinded by the Secretary of the I n t e r io r and the rescission has been recognized by the district court, at least for p u r p o s e s of the preliminary injunction against that moratorium. Consequently, t h e preliminary injunction no longer has the same, if any, legal or practical e ffe c t .1 We therefore hold that this appeal, seeking to set aside the subject p r e lim in a r y injunction, has been mooted by the acts of the appellant Secretary a n d by the subsequent rulings of the district court that granted that injunction. Any opinion expressed by this court on the merits and legality of the issuance of t h e preliminary injunction would address an injunction that is legally and

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. In response to our question whether the Secretary of the Interior had the authority to declare the provisions of the May 28 moratorium to be withdrawn, the district court held that "there is simply insufficient support for holding that the rescission was without some administrative force." Hornbeck v. Salazar, No. 10-30585, Order & Reasons at 11 (E.D. La. Sept. 1, 2010). We understand this ruling to reflect the district court's view that the moratorium the preliminary injunction enjoined no longer has any operative effect. We express no opinion as to the merits of the district court's conclusion on this issue, except to say that the first moratorium presently has no effect. Any merits relating to the legal effect of the first moratorium are not at issue in this appeal of the preliminary injunction against that moratorium.
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No. 10-30585 p r a c t ic a lly dead.2 See In re Blast Energy Servs., Inc., 593 F.3d 418, 423 (5th Cir. 2 0 1 0 ) ("If an appellate court is unable to grant any remedy for [a party], its o p in io n would be merely advisory and it must dismiss the appeal as moot.").3 T h is appeal is therefore DISMISSED as moot.4

We do not express any opinion on whether the issuance of a second moratorium (1) violated the district court's preliminary injunction; (2) was done merely to avoid judicial review of the first moratorium; or (3) renders moot the merits of the underlying suit. We view the dissent as having no merit because its legal arguments, although well stated and deserving of our respect, apply to rare situations not presented here. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) ("[I]t is generally inappropriate for a federal court at the preliminary injunction stage to give a final judgment on the merits."). Apparently eager to reach the merits of a different appeal, the dissent urges that we decide today "whether the [Department of the Interior] acted arbitrarily in issuing its 6-month deepwater drilling moratorium." That question has not been appealed to this panel and, indeed, is currently pending before the district court below. As to the dissent's charge that our decision "shirks" our judicial responsibility, we are decidedly unpersuaded that one of this court's duties is to render judgment on matters that are not before us. Because the appeal itself is dismissed as moot, we need not decide any ancillary motions currently pending before this court. We make clear that our ruling is limited to the preliminary injunction and has no effect on the merits of the declaratory judgment or other underlying issues now before the district court.
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No. 10-30585 D E N N IS , Circuit Judge, dissenting: I respectfully dissent from the majority's dismissal of the appeal from the d is t r ic t court's order granting a preliminary injunction against the Department o f the Interior's ("DOI") May 28 moratorium on deepwater drilling (the "first m o r a t o r iu m " ). This court has the jurisdiction and the duty under the A d m in is tr a t iv e Procedure Act ("APA") to decide expeditiously and finally w h e t h e r the DOI acted arbitrarily in issuing its 6-month deepwater drilling m o r a t o r iu m . A prior motions panel of this court recognized that jurisdiction and d u t y in ordering an expedited hearing and decision of this appeal. The plaintiffs o r ig in a lly brought this action complaining of the DOI's alleged arbitrary action u n d e r the APA, and the district court and the parties agree that the crucial issue o f arbitrariness vel non must be decided under the APA. The precedents of this c ir c u it and others make clear that the APA's judicial review standards, not p r u d e n t i a l considerations of injunctive relief, must be applied to enter a final ju d g m e n t either affirming the DOI's order as having been validly issued, or v a c a t in g that order as having been issued arbitrarily or unlawfully.1

The standards of judicial review established by the APA call upon the courts to resolve the question of law of whether the first moratorium was arbitrary and capricious. See Amerada Hess Corp. v. Dep't of Interior, 170 F.3d 1032, 1034-35 (10th Cir. 1999) (holding that natural gas lessee's challenge to DOI orders could not be brought under the citizen suit provision of the Outer Continental Shelf Lands Act ("OCSLA"), but must be reviewed under the APA); OXY USA, Inc. v. Babbitt, 122 F.3d 251, 258 (5th Cir. 1997) ("We do not think that Congress intended for the citizen suit provision [of the OCSLA] to operate either as a means of obtaining `umbrella' review for a series of agency decisions that were or will be otherwise subject to judicial review under the APA, or as an express avenue for appealing to the district court an initial agency decision that is subject to further review within the agency. To hold otherwise would be to interpret the citizen suit provision as implicitly repealing the APA with respect to such agency action. It is well-settled that repeals by implication are not favored."); see also, inter alia, Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001), discussed infra.

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No. 10-30585 I. F o llo w in g the BP Deepwater Horizon drilling rig blowout and oil spill d is a s t e r of April 20, 2010 on the Outer Continental Shelf in the Gulf of Mexico, t h e DOI began to investigate the disaster's causes and effects, including BP's s h o c k in g inability to stop or control the oil eruption that fouled Gulf waters, s h o r e s , bays and marshes. These events raised grave concerns about heretofore u n r e c o g n iz e d and perhaps currently irremediable dangers involved in deepwater o il and gas drilling. Pending its inquiry, examination and research, the DOI, on M a y 28, 2010, acting under the authority vested in it by the Outer Continental S h e lf Lands Act, suspended all deepwater offshore drilling operations in sea d e p t h s of more than 500 feet for six months because of their evident threat to the e n v ir o n m e n t . Plaintiffs, Hornbeck Offshore Services, LLC and others, obtained fr o m the district court a preliminary injunction staying the DOI's first m o r a t o r iu m on the grounds that it was likely arbitrary under the APA. Hornbeck O ffs h o r e Servs., L.L.C. v. Salazar, 696 F. Supp. 2d. 627 (E.D. La. 2010). The defendants-appellants, Kenneth Lee Salazar, Secretary of the DOI, a n d Michael R. Bromwich, Director of the Bureau of Ocean Energy, M a n a g e m e n t, Regulation and Enforcement ("BOEMRE"), formerly known as the M in e r a l Management Service ("MMS"), appealed, filed the DOI's existing a d m in is t r a t iv e record in support of the moratorium with this Court of Appeals, a n d moved this court for a stay of the preliminary injunction pending their a p p e a l. A majority of a motions panel denied that stay, over my dissent. H o w e v e r , all three judges on that motions panel concurred in ordering that the a p p e a l be expedited so that an oral argument panel could quickly hear the case a n d enter a judgment after reviewing the district court's decision. O n July 12, the Secretary of the DOI purportedly acted to revoke the first m o r a t o r iu m order and issue a second one in its place. The Secretary moved this c o u r t to vacate the preliminary injunction as having been mooted by his second 5

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No. 10-30585 m o r a t o r iu m order, which he filed with us along with the DOI's comprehensive o u tlin e of its administrative record supporting that order. That second m o r a t o r iu m is almost identical to the first, reaching similar offshore drilling a c t iv it ie s , for the same six-month duration and based largely upon the same a d m in is t r a t iv e record. T h e majority of the present oral argument panel assigned to hear the e x p e d it e d appeal, without rendering a decision, made a limited remand of the c a s e to the district court to supplement the record and determine whether: (1) t h e Secretary had the authority to revoke the first moratorium; (2) the second m o r a t o r iu m actually relied upon new evidence; (3) the first and second moratoria w e r e identical in scope; and (4) the preliminary injunction was moot. Hornbeck O ffs h o r e Servs., LLC v. Salazar, No. 10-30585, 2010 WL 3219469, at *1-2 (5th C ir . Aug. 16, 2010) (unpublished). I dissented and contended, in essence, that t h e s e are all issues of law within our competence, jurisdiction and duty to decide b a s e d on the administrative records on file with us. Id. at *2-5 (Dennis, J., d is s e n tin g ). O n remand, the district court held a hearing and issued a second opinion c o n c lu d in g that the Secretary had the authority to revoke the first moratorium a n d impose the second, but that, in light of the voluntary cessation exception to t h e mootness doctrine, the case challenging the validity of the DOI's first m o r a t o r iu m was not moot. Hornbeck Offshore Servs., L.L.C. v. Salazar, Civil A c t io n No. 10-1663, 2010 WL 3523040 (E.D. La. Sept. 1, 2010). Accordingly, the d is t r ic t court denied the defendants-appellants' motion to dismiss and for a stay a n d returned the instant appeal with the district court's determinations to the p r e s e n t panel of this court. N o w , in a surprising turnabout, the majority, apparently having received u n e x p e c t e d answers from the district court, dismisses the appeal without d e c i d in g anything, on the mistaken theory that the question of the first 6

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No. 10-30585 m o r a t o r iu m 's alleged arbitrariness is moot or no longer before us and that, t h e r e fo r e , any further ruling by us in this appeal would be purely an advisory o p in io n . This decision shirks our responsibility to render judgment upon the m a t t e r before us. Numerous cases, including controlling Supreme Court a u t h o r it y , counsel that where an interlocutory appeal presents a question of la w -- e s p e c ia lly whether under the APA a Federal agency has acted arbitrarily a n d capriciously--and the record is sufficient to review that question, we have t h e authority and duty to enter final judgment on that issue. In the present case, w e have a record that is almost 4,000 pages long, the district court has issued t w o opinions, and we have received innumerable briefs from the parties and a m ic i. Accordingly, we have more than a sufficient administrative agency record u p o n which to render final judgment determining whether or not the DOI's first m o r a t o r iu m order was arbitrary. Further, as I explained previously, entering final judgment in this case would in no way violate the prohibition against a d v is o r y opinions because the plaintiffs' challenge to the first deepwater drilling m o r a t o r iu m is not moot. Rather, it falls within numerous exceptions to the m o o t n e s s doctrine--including the voluntary cessation, capable of repetition yet e v a d in g review, and collateral consequences exceptions. Hornbeck Offshore S e r v s ., 2010 WL 3219469, at *3-5 (Dennis, J., dissenting). The majority's d e c is io n ignores that this case is not a typical civil litigation between private p a r tie s , but a challenge to a Federal agency regulatory decision brought before t h e district court as an appellate tribunal under the APA,2 based on a complete a d m in is t r a t iv e agency record, and thus presents a ripe question of law for our a p p e lla te review. It is unnecessary and against the interest of the public and the c o u r ts for this panel to continue to delay our final determination of whether the

"As we have repeatedly recognized . . . when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).

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No. 10-30585 D O I acted arbitrarily in issuing its first deepwater drilling moratorium.

II. The D.C. Circuit's decision in American Bioscience, Inc. v. Thompson, 269 F .3 d 1077 (D.C. Cir. 2001), illustrates both the error of the panel majority in c o n c lu d in g that we lack jurisdiction and the proper method of resolving the in s t a n t appeal. That case involved an "appeal[] from the district court's denial o f [American Bioscience's] request for preliminary injunctive relief" against the F o o d and Drug Administration's ("FDA") decision to approve a generic version o f the company's cancer treatment drug. 269 F.3d at 1078. In particular, a n a lo g o u s to the issues presented in the instant case, American Bioscience had a r g u e d that the FDA's actions "were contrary to the Administrative Procedure A c t " in that they were arbitrary and capricious. Id. at 1081. The district court in it i a l ly denied the preliminary injunction, but the D.C. Circuit remanded for r e c o n s id e r a t io n in light of the administrative record, which had not been p r e v io u s ly filed. Id. at 1081-82. The district court again denied the preliminary in ju n c t io n on the basis that American Bioscience had not shown irreparable in ju r y or that it was likely to prevail on the merits. Id. at 1083. On appeal, the D .C . Circuit found it irrelevant that American Bioscience had failed to show ir r e p a r a b le injury, determined that the agency had acted arbitrarily, and o r d e r e d the district court to "vacate the FDA's order and remand to the agency." I d . at 1083, 1086. It explained that although the case was presented to the d is t r ic t court as a motion for a preliminary injunction, the court should have e x a m in e d the administrative record and determined that the agency failed to c o m p ly with the APA. Specifically it stated, "As we have repeatedly recognized, . . . when a party seeks review of agency action under the APA, the district judge s it s as an appellate tribunal. The `entire case' on review is a question of law." Id. a t 1083-84 (citing County of L.A. v. Shalala, 192 F.3d 1005, 1011 (D.C. Cir. 8

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No. 10-30585 1 9 9 9 ); Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n.3 (D.C. Cir. 1 9 9 9 ); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); M a r s h a ll County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1 9 9 3 )). Therefore, "[i]f an appellant . . . prevails on its APA claim, it is entitled t o relief under that statute, which normally will be a vacatur of the agency's o r d e r ." Id. at 1084. Because the appellant was entitled to that remedy, the court o f appeals continued, where the district court had failed to properly enter final ju d g m e n t , it was incumbent upon the appellate court to do so. Id. The appeals c o u r t acknowledged that American Bioscience had "introduced a good deal of c o n fu s io n by seeking an injunction," but stated that this was irrelevant. Id. "[I]f [t h e appellant] makes out its case under the APA it is entitled to a remedy." Id. Thus, the American Bioscience court held that when a plaintiff complains that a federal agency acted arbitrarily under the APA, and the agency presents it s administrative record in support of its actions, the fact that a party moved for a preliminary injunction below does not limit the courts' authority and duty u n d e r the APA to perform judicial review of the agency's decision for a r b it r a r in e s s . When the administrative record is available for review, and a cou rt is asked to determine whether the agency's action was arbitrary, capricious o r unlawful, a court can and should issue a final judgment on the merits under t h e APA regardless of the form of the motion presenting that issue. If the district c o u r t fails to carry out this duty, then the appellate court is bound to review the r e c o r d independently and enter the proper final judgment. Accordingly, we have t h e jurisdiction and duty to review the DOI's moratorium order for alleged a r b it r a r in e s s . This issue remains reviewable because it falls within the voluntary cessation, capable of repetition yet evading review, and collateral c o n s e q u e n c e s exceptions to the mootness doctrine. Hornbeck Offshore Servs., 2 0 1 0 WL 3219469, at *3-5 (Dennis, J., dissenting). Therefore, as in American B io s c ie n c e , this panel should have provided a full and final judgment on the 9

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No. 10-30585 m e r it s of the appeal, determining whether the DOI acted arbitrarily and c a p ric io u s ly .

III. T h e cases cited in the majority's order actually controvert and undermine it s conclusions. None involved a suit, such as the present case, in which a party c h a lle n g e d a Federal agency's action as arbitrary, thus invoking the federal c o u r t's authority and duty to decide the question of law of whether a federal a g e n c y 's conduct was arbitrary or capricious under the APA. Furthermore, even though they involved only private parties or state o ffic ia ls , the cases cited by the majority corroborate that under a proper a p p lic a t io n of the mootness doctrine's exceptions, the issue of whether the first m o r a t o r iu m order was arbitrary and capricious is not moot, and thus deciding e it h e r to vacate the DOI's order as arbitrary or to affirm it as rational and n o n -a r b it r a r y would not be an advisory opinion. In Dailey v. Vought Aircraft Co., 1 4 1 F.3d 224, 226-29 (5th Cir. 1998), we held, in private party litigation, that an a t t o r n e y 's disbarment without due process was not moot, despite the district cou rt's reinstatement of her to its bar, because her disbarment caused continuing s t ig m a and damage to her reputation. Thus, Dailey illustrates an application of t h e collateral consequences exception to the mootness doctrine that I previously e x p la in e d is applicable to the instant case. See Hornbeck Offshore Servs., 2010 W L 3219469, at *4 (Dennis, J., dissenting). Likewise, In re Blast Energy S e r v ic e s , Inc., 593 F.3d 418, 423 (5th Cir. 2010), a bankruptcy case, indicates t h a t a case is not moot if the judgment from this court would provide a remedy. B e c a u s e the instant case falls within numerous exceptions to the mootness d o c t r in e , the present appeals panel, by entering a final judgment holding either t h a t the DOI's action was arbitrary and therefore vacatable or that it was not a r b it r a r y and should be upheld, would provide a meaningful decision and an 10

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No. 10-30585 a p p r o p r ia t e remedy, not merely an advisory opinion. See Hornbeck Offshore S e r v s ., 2010 WL 3219469, at *3-5 (Dennis, J., dissenting). Moreover, the only case cited by the majority that actually speaks to a p p e lla te jurisdiction over preliminary injunctions, University of Texas v. C a m e n is c h , 451 U.S. 390 (1981), corroborates American Bioscience's teaching t h a t in litigation under the APA, when the agency presents a properly developed r e c o r d , even if the parties have appealed only the entry of a preliminary in ju n c t io n , a court of appeals should review and determine arbitrariness vel non in a final judgment. In Camenisch, the Fifth Circuit affirmed the grant of a p r e lim in a r y injunction requiring the University of Texas to provide a deaf s t u d e n t an interpreter. 451 U.S. at 391-93. We concluded that the case was not m o o t , even though by the time the case reached our court the University had c o m p lie d with the preliminary injunction and the student had graduated, b e c a u s e the issue of who should pay for the interpreter remained live. Id. at 393. T h e Supreme Court reversed, stating that our court "correctly held that the case a s a whole is not moot, since . . . it remains to be decided who should ultimately b e a r the cost of the interpreter," but that issue was not sufficient to allow our c o u r t to rule on the preliminary injunction. Id. Instead, the Supreme Court c o n c lu d e d that the case "must be remanded to the District Court for trial on the m e r it s ." Id. at 394. However, the Court explained that this decision was p r e m is e d upon the notion that the preliminary injunction was "granted on the b a s is of procedures that are less formal and evidence that is less complete than in a trial on the merits." Id. at 395. Likewise, the holding presumed that the p a r tie s and courts would benefit from a "full opportunity to present their case[]." I d . at 396. Consistent with this reasoning, Camenisch distinguished our decision in K in n e tt Dairies, Inc. v. Farrow, 580 F.2d 1260 (5th Cir. 1978). Camenisch, 415 U .S . at 397 n.3. In Kinnett this court explained that where the parties had 11

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No. 10-30585 a p p e a l e d the grant of a preliminary injunction, but subsequent events " e lim in a te d " the force and effect of that injunction, "reducing the task before this c o u r t to a simple decision on the merits," this court could nonetheless enter ju d g m e n t on the merits. 580 F.2d at 1266. Such a judgment was allowable, the c o u r t continued, because the case presented a "paradigm" instance of an event t h a t was "capable of repetition yet evading review" and therefore the appeal was n o t moot and "a real controversy exist[ed]," which should be disposed of on the m e r it s . Id. at 1266 & n.14. As American Bioscience demonstrates, neither of Camenisch's

p r e s u m p t io n s justifying limited interlocutory jurisdiction over preliminary in ju n c t i o n s as a general rule in conventional civil litigation, holds true in the in s t a n t administrative law case. Where, as here, a case presents the question of w h e t h e r an agency action was arbitrary and capricious under the APA, "[t]he `e n tir e case' on review is a question of law." American Bioscience, 269 F.3d at 1 0 8 3 (citing County of L.A., 192 F.3d at 1011; Univ. Med. Ctr. of S. Nev., 173 F .3 d at 440 n.3; James Madison Ltd., 82 F.3d at 1096; Marshall County Health C a r e Auth., 988 F.2d at 1226). Therefore, a remand for a trial on the merits in t h e district court is not possible and would not benefit the parties or the courts. I n s t e a d , the case is more analogous to Kinnett. It falls into numerous exceptions t o the mootness doctrine. Hornbeck Offshore Servs., 2010 WL 3219469, at *3-5 (D en n is , J., dissenting). All that is required to reach the underlying arbitrariness c l a i m is a sufficient administrative record, American Bioscience, 269 F.3d at 1 0 8 3 -8 4 , and such a record has been filed with this court. See id. at 1084. A c c o r d i n g ly , Camenisch's limits on our interlocutory jurisdiction as a general r u le in conventional civil litigation are inapplicable in the present APA case. I n s t e a d , through its citation distinguishing Kinnett, Camenisch indicates that lit ig a t io n based on an established record, such as suits challenging agency action u n d e r the APA, falls into an exception to Camenisch's general rule, which 12

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No. 10-30585 su p p o r t s our retaining jurisdiction and deciding the arbitrariness issue by a final ju d g m e n t.

IV . Finally, even if one were to disagree with the foregoing authorities and r e a s o n in g , there would remain an additional reason to find that this appeal is n o t moot and ought to be orally argued and decided finally on the issue of a r b it r a r in e s s one way of the other. That is, there is a genuine legal question w h e t h e r the first moratorium continues to have force and effect. Governing S u p r e m e Court precedent suggests that the Secretary of the DOI was without a u t h o r it y to revoke the first moratorium and enter the second if such an action w o u ld strip us of jurisdiction. If this is correct, then the first moratorium r e m a in s in place and there can be no doubt that the appeal of the preliminary in ju n c t io n presents a live controversy to this court. In American Farm Lines v. Black Ball Freight Service, the Supreme Court r e v ie w e d the Interstate Commerce Commission's ("ICC") decision to grant A m e r ic a n Farm Lines "temporary operating authority" as a motor carrier. 397 U .S . 532, 535 (1970). Much as in this case, while petitions for review of that d e c is io n were pending, the ICC reopened its proceedings and took further e v id e n c e in order to support its grant of authority to American Farm Lines. Id. a t 536. It was then suggested that this second order deprived the courts of the p o w e r to review the ICC's initial decision. Id. at 536, 540-41. The Supreme Court w r o t e , "This power of the [Interstate Commerce] Commission to reconsider a p r io r decision does not necessarily collide with the judicial power of review. For w h ile the court properly could provide temporary relief against a Commission o r d e r , its issuance does not mean that the Commission loses all jurisdiction to c o m p le t e the administrative process. It does mean that thereafter the C o m m is s io n is `without power to act inconsistently with the Court's 13

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No. 10-30585 ju r is d ic t io n .'" Id. at 541 (quoting Inland Steel Co. v. United States, 306 U.S. 153, 1 6 0 (1939)). Thus, the Court continued, the second decision of the ICC was only v a lid because the ICC "did not act inconsistently with what the [lower courts] h a d done. . . . [I]n light of the District Court's stay, [the ICC] by express terms, d ir e c t e d [American Farm Lines] not to perform operations under the first order a n d made the second order effective only on further order of the Commission," w h ic h was not granted while the case considering the first ICC decision was p e n d in g . Id. at 541-42 & n.9. Under American Farm Lines the Secretary's power is limited to developing a second moratorium that would be imposed once we r e s o lv e the appeal challenging the first. Thus, contrary to the majority's e r r o n e o u s conclusion, the Secretary could not revoke and replace his first m o r a t o r iu m with a second, if that would moot the appeal and undermine our ju d ic ia l review of the Secretary's and the DOI's alleged action.

V. By invoking the unfounded specter of issuing an advisory opinion, the p a n e l majority has dismissed an appeal that, according to controlling and p e r s u a s iv e authority, continues to present a live case or controversy which this c o u r t has the authority and duty to resolve by a final judgment. In doing so, it ig n o r e s the clear intent and order of the unanimous motions panel of this court, t h a t the case should be heard and decided expeditiously. Moreover, it denies the p a r tie s and the public their rightful opportunity to learn whether the DOI acted a r b it r a r ily and capriciously in issuing the first deepwater drilling moratorium. T h is case should have been set long ago for oral argument, at which we could h a v e discussed the foregoing issues with the parties, recognized that the DOI's a lle g e d arbitrariness is not a moot issue, and proceeded to decide that issue fin a lly and expeditiously. For these reasons, I dissent. 14