In Defense of Animals, et al v. United States Department of th, et al
FILED PER CURIAM OPINION (MARY M. SCHROEDER, JOHNNIE B. RAWLINSON and CARLOS T. BEA) (JBR dissenting) This appeal must be dismissed. Any further appeals in the underlying action shall be expedited and calendared before this panel. DISMISSED. FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN DEFENSE OF ANIMALS;
DREAMCATCHER WILD HORSE AND
BURRO SANCTUARY; BARBARA
CLARKE; CHAD HANSON; LINDA
UNITED STATES DEPARTMENT OF THE
INTERIOR; BUREAU OF LAND
MANAGEMENT; KEN SALAZAR,
Secretary of the U.S. Department
of the Interior; ROBERT ABBEY,
Director of the Bureau of Land
Management; KEN COLLUM, Acting
Field Manager of Eagle Lake
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
January 11, 2011—San Francisco, California
Filed August 15, 2011
Before: Mary M. Schroeder, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge Rawlinson
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10850 IN DEFENSE OF ANIMALS v. U.S. DEPT. OF THE INTERIOR
Rachel Fazio, Cedar Ridge, California, for plaintiffsappellants In Defense of Animals, et al.
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IN DEFENSE OF ANIMALS v. U.S. DEPT. OF THE INTERIOR 10851
David C. Shilton, Washington, D.C., for defendants-appellees
Kenneth L. Salazar, Secretary of the Interior, et al.
This interlocutory appeal arises from an action instituted in
the district court to stop the government from rounding up,
destroying, and auctioning off wild horses and burros in the
Twin Peaks Herd Management Area on the CaliforniaNevada border. Plaintiffs allege that the government’s actions
will violate the Wild Free-Roaming Horses and Burros Act
(“Wild Horses Act”), 16 U.S.C. § 1331 et seq., and the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq.
Plaintiffs are two non-profit organizations dedicated to protecting wild horses and burros, In Defense of Animals and
Dreamcatcher Wild Horse and Burro Sanctuary, as well as
members of these organizations, Barbara Clarke, Chad Hanson, and Linda Hay (collectively “Plaintiffs”). Plaintiffs filed
a Motion for a Temporary Restraining Order and/or Preliminary Injunction on August 5, 2010 to stop the roundup of
horses that was scheduled to begin August 9, 2010 and to last
45-60 days. The district court denied the injunction, a motions
panel at this court denied an emergency motion for injunctive
relief pending appeal on August 10, 2010, and the roundup
has now taken place. The horses are currently offsite and the
remainder of the plan is apparently going forward.
Plaintiffs’ motion raises serious legal questions concerning
whether the large-scale removal of horses conflicts with the
Wild Horses Act and whether an Environmental Impact Statement is required before any action can be implemented. The
motion for preliminary injunction sought to enjoin only the
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10852 IN DEFENSE OF ANIMALS v. U.S. DEPT. OF THE INTERIOR
effects of implementing the initial phase. The motion for preliminary injunction sought to “preserve the status quo,” i.e.
enjoin the Twin Peaks Roundup of over 2,000 wild horses and
200 burros. Significantly, plaintiffs’ motion alleges that the
“irreparable harm” to plaintiffs will flow from the proposed
 The initial stage of the plan has, however, now concluded and the roundup has taken place. This appeal, therefore, is moot. We reached the same conclusion in a similar
case. Am. Horse Prot. Ass’n, Inc. v. Watt, 679 F.2d 150, 151
(9th Cir. 1982) (noting that the court “cannot order [the completed roundup’s] effects undone”). We express no opinion
here as to whether the entire action is moot. It remains pending before the district court.
 The dissent appears to construe our holding to be that
plaintiffs’ case is moot. This is incorrect. We hold only that
this interlocutory appeal from the denial of a preliminary
injunction is moot because the roundup sought to be enjoined
has taken place. In the event that plaintiffs prevail on the merits of their claims, the district court should consider what
relief is appropriate.
 The posture of this case is similar to that in Animal
Legal Defense Fund v. Shalala, 53 F.3d 363 (D.C. Cir. 1995),
where the action that the plaintiff sought to preliminarily
enjoin had already occurred. Id. at 366. In dismissing the
appeal, the court said that the “parties no longer have a legally
cognizable interest in the determination of whether the preliminary injunction was properly denied.” Id. It then went on
to say that “the underlying dispute . . . remains alive.” Id. The
same is true, insofar as the record before us reflects in this
This appeal must be dismissed. Any further appeals in the
underlying action shall be expedited and calendared before
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IN DEFENSE OF ANIMALS v. U.S. DEPT. OF THE INTERIOR 10853
RAWLINSON, Circuit Judge, dissenting:
I do not agree with the majority’s view that the injunctive
relief sought pursuant to the National Environmental Policy
Act (NEPA) has been mooted.
A claim for relief is not moot so long as we can provide
effective relief, in this case return of the horses to their native
habitat. Cf. Friends of the Earth, Inc. v. Bergland, 576 F.2d
1377, 1379 (9th Cir. 1978) (holding case moot where “courts
cannot undo what has already been done”).
It is undisputed that the BLM rounded up all the horses on
the range and then decided which horses should be released
back into the Twin Peaks area and which should be transported to holding areas.
This would be a different case if the horses who were
rounded up had all been dispersed. But that is not what happened. The horses that were rounded up are currently being
kept in various holding areas throughout the southwestern
United States. As easily as the horses were transported out of
their natural habitat, they can be returned. In this circumstance, relief is available and the request for injunctive relief
is not moot. See Nw. Envt’l Dfs. Ctr. v. Gordon, 849 F.2d
1241, 1244-45 (9th Cir. 1988).
The majority reasons that this appeal is moot because “[t]he
motion for preliminary injunction sought to enjoin only the
effects of implementing the initial phase.” See Opinion,
p.10851-52. There are two bases for challenging this reasoning. The first basis is that removal of the horses was part of
the initial phase. Indeed, the status quo sought by the Plaintiffs in the motion was return of the horses to their native hab-
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10854 IN DEFENSE OF ANIMALS v. U.S. DEPT. OF THE INTERIOR
itat. The second basis is that the determination of mootness is
not tied to the initial remedy sought. Rather, “in deciding a
mootness issue, the question is not whether the precise relief
sought at the time the application for an injunction was filed
is still available. The question is whether there can be any
effective relief.” Nw Envt’l Dfs. Ctr., 849 F.2d at 1244-45
(citation and internal question mark omitted). Undoubtedly,
effective relief can be granted in this case by returning the
removed horses to their natural habitat. The majority is incorrect in thinking that I construe the majority decision as holding that the entire case is moot. See Majority Opinion, p.
10852. Not so. My dissent is based on the majority’s erroneous conclusion that the plaintiffs’ interlocutory appeal is
moot. With a ready remedy available, this appeal is not moot.
For that reason, I respectfully dissent.
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