Alliance for the Wild Rockies v. Jewell et al

Filing 37

ORDER finding as moot 16 Motion for Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment. Signed by Judge Donald W. Molloy on 5/8/2015. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

ALLIANCE FOR THE WILD ROCKIES,

CV 14–122–M–DWM

Plaintiff,
vs.

ORDER

SALLY JEWELL, in her official capacity
as Secretary of the Department of the
Interior; and DANIEL ASHE, in his
official capacity as Director of the U.S.
Fish & Wildlife Service,
Defendants.

INTRODUCTION
Plaintiff Alliance for the Wild Rockies (“Alliance”) filed suit on April 22,
2014, seeking review of the United States Fish and Wildlife Service’s (“the
Service”) November 22, 2013 finding that reclassifying the Cabinet-Yaak grizzly
bear (“the bear”) from “threatened” to “endangered” status under the Endangered
Species Act (“ESA”), 16 U.S.C. § 1531, et seq., is “warranted but precluded.”
Alliance claims the preclusion finding is unlawful and that the Service has
unreasonably delayed reclassification of the bear for 20 years. The Service insists
the case is moot as a result of the Service’s most recent December 5, 2014 finding
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that reclassifying the bear from threatened to endangered is no longer warranted.
The parties have filed cross motions for summary judgment. (Docs. 16, 26.) For
the reasons stated below, the Service’s motion is granted in part on the mootness
issue. Plaintiff’s motion is denied as moot.
LEGAL BACKGROUND
The ESA directs the Service to “determine whether any species is an
endangered species or a threatened species because of any of the following
factors: (A) the present or threatened destruction, modification, or curtailment of
its habitat range; (B) overutilization for commercial, recreational, scientific, or
education purposes; (C) disease or predation; (D) the inadequacy of existing
regulatory mechanisms; or (E) other natural or manmade factors affecting its
continued existence.” 16 U.S.C. § 1533(a)(1). The Service is required to make
such determinations “solely on the basis of the best scientific and commercial data
available.” 16 U.S.C. § 1533(b)(1)(A).
Any “interested person” may petition the Service “to add a species to, or to
remove a species from” the lists of threatened or endangered species. 16 U.S.C. §
1533(b)(3)(A). Within 90 days of receiving such a petition, the Service must
make a “finding as to whether the petition presents substantial scientific or
commercial information indicating that the petitioned action may be warranted.”
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Id. If the Service answers this question in the affirmative, it must, within 12
months after receiving the petition, issue one of the following findings (“12-month
finding”): (i) not warranted; (ii) warranted; or (iii) warranted but precluded. 16
U.S.C. § 1533(b)(3)(B).
If the Service concludes that the listing is not warranted, the Service must
publish its finding, and the listing process for that petition ends. 16 U.S.C. §
1533(b)(3)(B)(i). If the Service concludes that the listing is warranted, the Service
must “promptly publish in the Federal Register a general notice and the complete
text of a proposed regulation to implement” the listing (“proposed rule”). 16
U.S.C. § 1533(b)(3)(B)(ii). To make a warranted but precluded finding, the
Service must conclude that although warranted, “the immediate proposal and
timely promulgation of a [proposed rule] is precluded by pending proposals to
determine whether any species is an endangered species or a threatened species,
and . . . expeditious progress is being made to add qualified species” to the list of
protected species and to remove species that no longer qualify. 16 U.S.C. §
1533(b)(3)(B)(iii). The ESA requires the Service to annually reevaluate the status
of all species for which it has made a warranted but precluded finding and issue a
new 12-month finding. 16 U.S.C. § 1533(b)(3)(C)(i).
FACTUAL BACKGROUND
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The grizzly bear (Ursus arctos horribilis) was listed as a threatened species
under the ESA in the lower 48 States in 1975. See 40 Fed. Reg. 31,734 (July 28,
1975). The Service approved a Grizzly Bear Recovery Plan in 1982 and revised
the Plan in 1993. AR8995. The 1993 Plan established detailed recovery
parameters for four main recovery zones, including the Cabinet-Yaak Ecosystem,
AR9000, which is located in northwest Montana and northern Idaho. In 1991, the
Service received its first petition to reclassify the Cabinet-Yaak grizzly bear from
threatened to endangered. AR9563. The Service published its 12-month finding
in 1993 and determined that reclassifying the bear was warranted but precluded.
58 Fed. Reg. 8,250 (Feb. 12, 1993). Each year since 1993, the Service has
reevaluated the bear’s status, has published a new 12-month finding on
reclassification of the bear in its Candidate Notice of Review in the Federal
Register (“the Notice”), and has determined every year that reclassification is
warranted but precluded. AR0061.
In its 2013 finding, the Service determined once again that reclassification
to endangered status for the bear is warranted but precluded by the Service’s other,
higher priority listing work identified in the Notice. 78 Fed. Reg. 70,104, 70,151
(Nov. 22, 2013). After Alliance filed its Complaint and before it filed its motion
for summary judgment, the Service published its most recent 12-month finding. In
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the 2014 finding, the Service determined that reclassification of the bear to
endangered status is no longer warranted and that the bear will retain its
threatened status because “[t]he population trend has now changed from declining
to stable.” 79 Fed. Reg. 72,487, 72,488 (Dec. 5, 2014).
Alliance claims the Service’s 2013 preclusion determination is unlawful
under 5 U.S.C. § 706(2)(A) because the Service failed to list the bear according to
the bear’s listing priority number and because the Service refused to request from
Congress the funds necessary for the listing program. Alliance also claims that the
Service’s annual warranted but precluded determinations since 1993 constitute
unreasonable delay under 5 U.S.C. § 706(1). Alliance asks the Court to compel
the Service to “promptly publish a proposed listing rule . . . to list the bear as
endangered and designate critical habitat by a reasonable and court-ordered
deadline.” (Amended Complaint, Doc. 8 at 29.) According to the Service,
however, its 2014 finding renders the case moot.
ANALYSIS
The Service insists that its 2014 determination that reclassification of the
bear from threatened to endangered is not warranted renders the case moot
because the Complaint only challenges the 2013 finding. Alliance does not
dispute that the case is moot; instead, Alliance claims that the “voluntary
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cessation” and “wrongs capable of repetition, yet evading review” exceptions to
the mootness doctrine apply.
Article III of the United States Constitution limits the jurisdiction of federal
courts to “Cases” and “Controversies.” The case or controversy requirement
continues throughout all stages of litigation, and “[t]here is thus no case or
controversy, and a suit becomes moot, when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.” Chafin v.
Chafin, 133 S. Ct. 1017, 1023 (2013) (internal quotation marks omitted). “[A]
case becomes moot only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party.” Id. (internal quotation marks omitted).
The case is moot. The Service’s 2014 not warranted determination
supersedes its 2013 preclusion determination. 79 Fed. Reg. at 72,451. The 2014
finding also concludes the listing process for the outstanding petitions to add the
bear to the endangered list. See 16 U.S.C. § 1533(b)(3)(B)(i). The Service is no
longer statutorily required to reevaluate the status of the bear and publish another
12-month finding. See 16 U.S.C. § 1533(b)(3)(C)(i). The Service will be under
no obligation to prepare a proposed rule and designate critical habitat unless and
until an interested person again petitions the Service to add the bear to the
endangered list and the Service determines that reclassifying the bear is warranted.
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See 16 U.S.C. § 1533(b)(3)(B)(ii). Essentially, Alliance’s requested relief—that
the Court compel the Service to “promptly” prepare a proposed rule and designate
critical habitat—is no longer available.
A.

Voluntary Cessation

Alliance insists that the case may nevertheless be decided because the
Service’s 2014 not warranted finding is a voluntary cessation. “Voluntary
cessation saves an issue from becoming moot if the defendant voluntarily stops the
allegedly illegal conduct to avoid a judgment against him, unless it is ‘absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to
recur.’” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1095 (9th Cir.
2003) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000)). “The heavy burden of persuading the court that the
challenged conduct cannot reasonably be expected to start up again lies with the
party asserting mootness.” Laidlaw, 528 U.S. at 189 (internal quotation marks and
alteration omitted).
The Service has met its heavy burden here. Alliance claims the Service’s
preclusion finding is unlawful and complains of its delay in adding the bear to the
endangered list after making repeated warranted but precluded determinations.
Had the Service voluntarily added the bear to the endangered list, prepared a
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proposed rule, and designated critical habitat, the voluntary cessation exception
may apply. However, the Service published a 2014 finding on the bear’s status
that is entirely different from its prior preclusion determinations, and that finding
concluded the process for the outstanding petitions that generated the 12-month
findings for the past 20 years. Essentially, the Service did not voluntarily cease
the actual illegal conduct alleged in Alliance’s Complaint. See Ctr. for Biological
Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir. 2007) (voluntary cessation
exception did not apply where the Service did not voluntarily cease the challenged
practice).
Additionally, “in order for this exception to apply, the defendant’s voluntary
cessation must have arisen because of the litigation.” Pub. Utils. Comm’n of Cal.
v. F.E.R.C., 100 F.3d 1451, 1460 (9th Cir. 1996). Alliance contests the Service’s
reasoning for its 2014 finding, claiming that threats to the bear did not materially
change between 2013 and 2014 to justify the Service’s new not warranted
determination after 20 years of warranted but precluded determinations. Alliance
goes on to claim, therefore, that the Service made the not warranted finding
because of this lawsuit. Yet, the Service explained its finding was based on a
change in the population trend, established regulatory mechanisms to protect the
bear, and documented movement between this and other bear populations. See 79
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Fed. Reg. at 72,488. Despite the parties’ ample briefing on the 2014 finding, the
validity of that finding is not the subject of this case and cannot be decided in this
case. For purposes of determining whether this case is moot, the Service’s
published explanation for its finding suffices to show that its decision did not arise
because of this litigation. Furthermore, the Service notified Alliance that the
Service intended to review and revise the bear’s listing priority number due to the
population’s improved status in its February 10, 2014 response to Alliance’s
notice of intent to sue. AR0002. That notification further supports the conclusion
that the Service’s assessment of the bear was likely to change regardless of this
litigation.
Finally, it is “absolutely clear” that the Service publishing a warranted but
precluded finding as to the bear “could not reasonably be expected to recur.”
Laidlaw, 528 U.S. at 189. The 2014 finding ended the petition review process on
the outstanding petitions and is subject to judicial review. 16 U.S.C. §
1533(b)(3)(B)(i), (C)(ii). Consequently, a new warranted but precluded finding
can only recur under either a new lawsuit challenging the 2014 finding or a new
petition process. On December 9, 2014, Alliance served the Service with a notice
of intent to sue that challenges the lawfulness of the 2014 finding, and on
December 11, 2014, Alliance filed a new petition to add the bear to the
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endangered list. (Doc. 31 at 4–6.) But to say that the possible results of the
lawsuit and the petition would adversely affect Alliance in the same way as it
alleges in its Complaint here is simply too remote and speculative; it is not
appropriate to speculate as to the outcome of those proceedings. See Lohn, 511
F.3d at 964 (purported “‘adverse effect’” cannot be “‘so remote and speculative
that there [is] no tangible prejudice to the existing interests of the parties’”
(quoting Headwaters, Inc. v. B.L.M., Medford Dist., 893 F.2d 1012, 1015 (9th Cir.
1989)). Additionally, Alliance’s argument that the Service made its finding
because of this lawsuit and will sua sponte issue another warranted but precluded
determination, see 50 C.F.R. § 424.15, is belied by the Service’s obligation under
the ESA to use the best scientific and commercial data available in making listing
determinations. See 16 U.S.C. § 1533(b).
B.

Capable of Repetition Yet Evading Review

Alternatively, Alliance insists that the case may be decided because it falls
within the “capable of repetition, yet evading review” exception. “The exception
applies when (1) the duration of the challenged action is too short to allow full
litigation before it ceases or expires, and (2) there is a reasonable expectation that
the plaintiffs will be subjected to the challenged action again.” Karuk Tribe of
Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1018 (9th Cir. 2012) (en banc). The
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exception “applies only in exceptional situations,” and both components must be
“simultaneously present.” Spencer v. Kemna, 523 U.S. 1, 17 (1998).
Evading review means the challenged action “is almost certain to run its
course before either [the Ninth Circuit] or the Supreme Court can give the case full
consideration.” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1173 (9th
Cir. 2002) (internal quotation marks omitted). The durational component is met
here. The Service’s 12-month findings, which are in effect for one year, satisfy
the exception “because a year is not enough time for judicial review.” Id.
Although the Service no longer has an obligation under the ESA to make an
annual 12-month finding for the bear after its 2014 not warranted determination,
compare 16 U.S.C. § 1533(b)(3)(C)(i) with (C)(ii), the Service does have an
obligation to make another 12-month finding in response to Alliance’s recent
petition, 16 U.S.C. § 1533(b)(3)(B). Alliance has also shown that it will continue
to bring petitions so long as the bear remains on the threatened list, and with each
new petition comes another 12-month finding requirement. The Service argues
that reclassification of the bear had been precluded for 20 years, which was
sufficient time for judicial review of the preclusion determinations. But those who
wish to challenge the Service’s findings cannot rely on the Service making the
same finding every year—as demonstrated by the 2014 finding.
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For the capable of repetition component, “the same controversy [is]
sufficiently likely to recur when a party has a reasonable expectation that it will
again be subjected to the alleged illegality.” Fed. Election Comm’n v. Wis. Right
to Life, Inc., 551 U.S. 449, 463 (2007) (internal quotation marks omitted).
Alliance has not demonstrated a reasonable expectation that it will be subjected to
a warranted but precluded determination again for two reasons. First, repetition of
the alleged illegality is too speculative. The Service based its 2014 finding on its
assessment that the bear population is now stable. Another warranted but
precluded determination would therefore require either a change in the bear’s
population trend such that the Service finds that reclassification is warranted or a
court determination that the Service’s 2014 finding was unlawful. Alliance insists
the Service’s 2014 finding is wrong because the bear’s population is actually
declining, but the validity of the Service’s current assessment of the bear cannot be
decided in this case. Thus, either a future warranted determination or the success
of Alliance in its future lawsuit represent “a speculative possibility [that] does not
constitute a ‘reasonable expectation.’” W. Coast Seafood Processors Ass’n v.
Natural Resources Defense Council, Inc., 643 F.3d 701, 705 (9th Cir. 2011).
Second, a future warranted but precluded determination would be based on
markedly different circumstances such that it could not reasonably be considered a
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repetition of Alliance’s claims in this case. In its argument, Alliance fails to
acknowledge the unique posture of the case as it now stands. The Service is no
longer in a position to make another preclusion finding on the petitions that
formed the basis for the findings from 1993 to 2013. Another preclusion finding
could only arise out of either a new petition or a court order, which will be based
on new data and assessments of the bear’s condition (data and assessments that
have not yet been tested in a court of law and cannot be tested in this case), and
new circumstances concerning the Service’s workload and budget. Alliance
insists the bear’s status is so tenuous that the Service could reasonably make
another warranted finding, and the Service has demonstrated a propensity toward
finding that reclassification of the bear is precluded by its higher priority listing
work and its budgetary constraints. Nevertheless, any future warranted but
precluded determination would simply be based on a scenario that would not be
the same controversy.
Buttressing the conclusion that this case is moot are the numerous filings by
the parties that relate to the Service’s 2014 finding and the new litigation initiated
by Alliance as to that finding. (See Docs. 26-1, 31, 33-1, 35-2, 35-3, 35-4.) This
case is morphing into a case about the 2014 finding, yet that finding is properly
the subject of a different lawsuit. At this juncture, it is impossible to “grant any
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effectual relief” as to the 2013 finding or the 19 findings that came before.
Accordingly, IT IS ORDERED that Defendants’ motion (Doc. 26) is
GRANTED in part and DENIED in part. This case is DISMISSED as MOOT.
Plaintiff’s motion (Doc. 16) is DENIED as moot.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter
judgment and close this case.
DATED this 8th day of May, 2015.

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