Natural Resources Defense Council, Inc. v. United State Department of the Interior

13 F. App'x 612

Opinions

ORDER

*

On March 7, 1994, the Fish and Wildlife Service published a final rule listing the tidewater goby as an endangered species. Under the Endangered Species Act, the Secretary of the Interior must designate a critical habitat for an endangered species within a year. 16 U.S.C. § 1533(a)(3), 1533(b)(6)(A)®, 1533(b)(6)(C)®. When the defendants faded to designate a critical habitat for the tidewater goby, and four years after the Service had listed it as an endangered species, the plaintiff brought suit in district court to compel the designation of the critical habitat.

On April 6, 1999, the district court granted summary judgment to the plaintiff and issued an injunction requiring the defendants to designate a critical habitat for the tidewater goby within 120 days. In the same order, the district court denied the defendants’ request for a stay. The defendants filed the instant appeal.

On the day of oral argument before this court, defendants published a final rule designating the critical habitat for the tidewater goby. The case or controversy with respect to the designation of a critical habitat for the tidewater goby is thus over. Under Article III of the Constitution, our jurisdiction to review a case depends on the existence of a live case or controversy. We no longer have one. This case has become moot. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 316-17, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

The dissent contends that this case falls within the “capable of repetition yet evading review” exception to the mootness doctrine. This exception does not apply here because the question presented in this appeal is not destined to evade review if it arises again. We note that after filing its appeal in this case, the defendants never requested that this court stay the district court injunction pending appeal. It could have. See Rule 8, Federal Rules of Appellate Procedure; see, e.g., A & M Records, Inc. v. Napster, Inc., 239 F.3d (9th Cir.2001). Instead, while the appeal was pending, the defendants went ahead and designated the critical habitat for the tidewater goby, thus mooting the controversy. In the future, if the defendants obtain a stay of an injunction to designate a critical habitat and refrain from making the designation while the stay is in effect, the case will not become moot and the question will not evade review.¹ Likewise, if a district court in the future were to deny an injunction in a case like this, an appeal from the denial will be ripe for decision without any additional ado. That is exactly what happened in a recent case involving a very similar issue. Center for Biological Diversity v. Norton, 254 F.3d 833 (9th Cir.2001) (reversing distinct court decision that refused to compel the Secretary of the Interior to make certain findings as required by the ESA).

Our dissenting colleague argues that the duration of the challenged action is too short to allow full litigation before it ceases. However, with the utmost respect, he fails to distinguish between court orders and regulatory or statutory deadlines. As noted above, the “challenged action” is an injunction requiring certain action within 120 days. The 120 day deadline was chosen by the judge in his discretion. He could have picked 150 days, 180 days, 365 days, or he could have stayed the injunction altogether pending appeal. So could we. This is in sharp contrast to the cases cited in the dissent such as Greenpeace v. Franklin, 14 F.3d 1324 (9th Cir.1992) and Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851 (9th Cir.1999) in which the “short time” is mandated by regulation or permit, making it inevitable that the case will become moot each and every time it is challenged. Miller v. California Pac. Med. Ctr., 19 F.3d 449 (9th Cir.1994) (en banc), is clearly distinguishable. It involved a National Labor Relations Act § 10(j) injunction and both proceedings and case law unique to NLRB litigation.

Because the plaintiffs claim sought to remedy the defendants’ failure to designate a critical habitat for the tidewater goby, and the defendants have now so designated, there is no remaining controversy for this court to decide. Moreover, it is well settled that “a federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Screntology v. U.S., 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (internal citations omitted).

The case is DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1

. It also is possible to obtain a stay pending appeal from the district court. See Rule 8(a)(1), Federal Rules of Appellate Procedure. Although the district court in this case declined to postpone compliance with its order beyond 120 days, it is not a forgone conclusion that another district court would refuse to stay its injunction pending full resolution of an appeal.