New Mexico Cattle Growers' Association v. United States Forest Service

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 3, 2026
• Docket: 25-2034
• Status: Unpublished

Opinion

Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 3, 2026 _________________________________ Christopher M. Wolpert Clerk of Court NEW MEXICO CATTLE GROWERS’ ASSOCIATION; SPUR LAKE CATTLE COMPANY; NELSON SHIRLEY; ALLEN CAMPBELL; HUMANE FARMING ASSOCIATION,

Petitioners - Appellants,

v. No. 25-2034 (D.C. No. 1:23-CV-00150-JB- UNITED STATES FOREST SERVICE; GBW) ANIMAL AND PLANT HEALTH INSPECTION (D.N.M.) SERVICE; CAMILLE HOWES, in her official capacity as Supervisor of the Gila National Forest; TOM VILSACK, in his official capacity as Secretary of the United States Department of Agriculture; RANDY MOORE, in his official capacity as Chief of the U.S. Forest Service; MICHIKO MARTIN, in her official capacity as Southwestern Regional Forester; HENRY PROVENCIO, in his official capacity as District Ranger for the Wilderness Ranger District, Gila National Forest; JANET BUCKNALL, in her official capacity as Deputy Administrator of the Animal and Plant Health Inspection Service; KEITH WEHNER, in his official capacity as Western Regional Director, Animal and Plant Health Inspection Service,

Respondents - Appellees,

and

CENTER FOR BIOLOGICAL DIVERSITY,

Intervenor Respondent - Appellee. _________________________________ Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 2

_________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BACHARACH, and FEDERICO, Circuit Judges. _________________________________

This case concerns the U.S. Forest Service’s decades-long efforts to remove

feral cattle from the Gila National Forest in New Mexico. After years of largely

unsuccessful nonlethal removal operations, the Forest Service in 2023 released a

decision memorandum authorizing the lethal removal of the Gila cattle by aerial-

based shooting. The New Mexico Cattle Growers’ Association, along with other

plaintiffs (collectively, “the Cattle Growers”), challenged the Forest Service’s

decision memo under the APA and the National Environmental Policy Act (NEPA)

seeking declaratory and injunctive relief.

The district court denied the Cattle Growers’ request for a temporary

restraining order, allowing the Forest Service’s aerial shooting operations to proceed.

The Forest Service completed its removal operations in December 2023, and the

district court subsequently dismissed all the Cattle Growers’ claims.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 3

During the pendency of the Cattle Growers’ appeal, the Forest Service

withdrew the challenged memo and issued new guidance directing agency officials to

stop using lethal methods to remove any remaining Gila cattle. The prospective

relief the Cattle Growers seek can thus no longer be given and this case does not

present a live case or controversy. Accordingly, we DISMISS the Cattle Growers’

appeal as moot. We also VACATE the district court’s judgment and remand with

directions to dismiss the case because the Forest Service, as the prevailing party

below, mooted this appeal by withdrawing its decision memo.

I. Background

In the 1970s, a federal grazing permittee declared bankruptcy and abandoned

hundreds of domesticated cattle in the Gila Wilderness of the Gila National Forest.

Over time, these Gila cattle multiplied and roamed free in the forest. The Forest

Service sought to remove the feral cattle because it found their presence and severe

overgrazing harmed the forest’s environment and water quality. For decades, the

Forest Service conducted nonlethal ground-based removal operations. But despite

removing hundreds of cattle over the years, those efforts failed to meaningfully

reduce the herd’s population.

In 2022, the Forest Service changed course and decided to conduct lethal

removal of the Gila cattle. It contracted with the Department of Agriculture’s

Animal Inspection Service to kill the cattle with a sharpshooter mounted in a

hovering helicopter. The Cattle Growers sued and moved for a TRO seeking to stop

the aerial shooting. Some plaintiffs were ranchers with grazing permits in the Gila 3 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 4

National Forest who worried their cattle could mistakenly be killed. Other plaintiffs

claimed the aerial shooting would create aesthetic and environmental harms to the

forest in which they frequented. But after the district court denied the TRO request,

the agency completed its planned removal operation, killing sixty-five Gila cattle.

The Forest Service and the Cattle Growers then stipulated in June 2022 to the

dismissal of the suit because the agency’s removal operation was complete and it had

no immediate plans to conduct additional shootings.

Yet in November 2022, the Forest Service issued a proposal to conduct more

aerial shootings to complete the removal of the Gila cattle. The agency solicited

public comments on its proposal. On February 16, 2023, the Forest Service issued a

decision memo authorizing the agency to complete removal of the herd by utilizing

both lethal and nonlethal methods. The memo stated the agency intended to conduct

recurring aerial shooting operations until the goals of the operation were met.

The Cattle Growers again sued the agency under the APA and NEPA and

moved for a TRO. They sought declaratory and injunctive relief against the Forest

Service’s February 2023 decision memo. Among other claims, the Cattle Growers

alleged the Forest Service was required to first capture the Gila cattle and offer them

for sale before it could kill them because the cattle were “unauthorized livestock”

under the agency’s impoundment regulations. See 36 C.F.R. § 262.10. But the

district court denied the Cattle Growers’ TRO request once again.

The Center for Biological Diversity, an environmental organization concerned

about the detrimental effects of the Gila cattle on the forest, intervened in the lawsuit

4 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 5

to also defend the agency’s removal actions. The Forest Service subsequently

conducted aerial shooting and ground-based operations throughout 2023, completing

its final removal operation in December of that year.

In January 2025, the district court dismissed all the Cattle Growers’ claims

with prejudice. This appeal followed.

While the appeal was pending, the Forest Service withdrew the February 2023

memo because it determined no Gila cattle remained in the forest. The Forest

Service reasoned that because it achieved the intended purposes of its removal

operations, the memo was no longer needed. At the same time, the Chief of the

Forest Service issued a directive ordering the agency’s officers “to refrain from the

use of lethal management practices when removing estray or feral cattle.” Aple. Br.,

Ex. E (Forest Service Letter dated November 13, 2025). The directive also instructed

agency officers to utilize the agency’s impoundment regulations under 36 C.F.R.

§ 262.10 as a framework when removing feral cattle in the future.

II. Discussion

The Center for Biological Diversity and the Forest Service argue the appeal is

moot because the agency withdrew the challenged memo and disavowed its intention

to use lethal methods in future removal operations. And although the district court in

its order found the case was not moot, it reached that conclusion before the Forest

Service withdrew the memo and issued its directive. In any event, we review the

issue of mootness de novo because we have no jurisdiction if the appeal is moot. See

5 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 6

Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th

Cir. 2010).

“Constitutional mootness doctrine is grounded in the Article III requirement

that federal courts may only decide actual ongoing cases or controversies.” Unified

Sch. Dist. No. 259, Sedgwick Cnty. v. Disability Rts. Ctr. of Kan., 491 F.3d 1143,

1147 (10th Cir. 2007) (quoting Seneca–Cayuga Tribe v. Nat’l Indian Gaming

Comm’n, 327 F.3d 1019, 1028 (10th Cir. 2003)). The Article III case-or-controversy

requirement “subsists through all stages of federal judicial proceedings, trial and

appellate.” Schell v. OXY USA Inc., 814 F.3d 1107, 1114 (10th Cir. 2016) (quoting

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). As a result, even if a case

“poses a live controversy when filed, the [mootness] doctrine requires a federal court

to refrain from deciding it if events have so transpired that the decision will neither

presently affect the parties’ rights nor have a more-than-speculative chance of

affecting them in the future.” Id. (internal quotation marks omitted). When a

plaintiff seeks prospective relief—e.g., a declaratory judgment or injunction—“the

mootness inquiry looks to whether the requested relief will actually alter the future

conduct of the named parties.” Id. “The crucial question is whether granting a

present determination of the issues offered will have some effect in the real world.”

Rio Grande Silvery Minnow, 601 F.3d at 1110 (quotation marks omitted).

The Cattle Growers seek declaratory and injunctive relief against the Forest

Service’s 2023 decision memo and the aerial shooting operations that it authorized.

But because the agency withdrew the memo, the challenged action no longer exists.

6 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 7

And because the agency has disavowed the use of lethal removal methods, the

prospective injuries from which the Cattle Growers seek judicial relief—e.g.,

accidental killing of their cattle, aesthetic harms to the environment—have

disappeared. See United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). Thus,

even if the Cattle Growers prevailed in this appeal, we cannot afford the relief they

seek; the Cattle Growers “can no longer satisfy the Article III case or controversy

jurisdictional requirement and the appeal is moot.” Id.

The Cattle Growers, however, contend the case is not moot because there have

been recent sightings of feral cattle in the forest, and the Gila cattle may therefore

repopulate. See App. 697. They argue that if that happens, the Forest Service might

decide to reconvene aerial shooting. The Cattle Growers contend the case thus falls

under two doctrinal exceptions to mootness: (1) the voluntary cessation exception,

and (2) the capable of repetition, yet evading review exception.

We review each contention in turn.

A. Voluntary Cessation

The voluntary cessation “exception exists to counteract the possibility of a

defendant ceasing illegal action long enough to render a lawsuit moot and then

resuming the illegal conduct.” Rio Grande Silvery Minnow, 601 F.3d at 1115

(quotation marks omitted). “Voluntary actions may, nevertheless, moot litigation if

two conditions are satisfied: ‘(1) it can be said with assurance that there is no

reasonable expectation that the alleged violation will recur, and (2) interim relief or

events have completely and irrevocably eradicated the effects of the alleged

7 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 8

violation.’” Id. (quoting Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).

“[T]he withdrawal or alteration of administrative policies can moot an attack on those

policies.” Id. at 1117 (citation modified). “And the mere possibility that an agency

might rescind amendments to its actions or regulations does not enliven a moot

controversy.” Id. (internal quotation marks omitted).

First, there is no reasonable expectation the Forest Service will resume aerial

shooting of the Gila cattle. Although the parties dispute whether any Gila cattle

remain in the forest, the agency nevertheless withdrew the challenged memo and

directed its officers to stop using lethal methods to remove what feral cattle might

remain. “[G]overnment self-correction provides a secure foundation for mootness

so long as it seems genuine.” Brown v. Buhman, 822 F.3d 1151, 1167–68 (10th Cir.

2016) (citation modified). Such is the case here, where the Forest Service withdrew

the challenged memo—despite the district court affirming its actions as lawful—

because the agency wanted to “improve relationships, and to foster better

communication and coordination” with “the local livestock industry.” Aple. Br., Ex.

E (Forest Service Letter dated November 13, 2025). Cf. West Virginia v. EPA, 597

U.S. 697, 720 (2022) (finding an appeal was not moot because the agency made no

representation that it would “not reimpose” the challenged regulation if the litigation

were “resolved in its favor” (internal quotation marks omitted)).

Second, interim events have irrevocably eradicated the alleged harms from the

aerial shooting: the Cattle Growers’ alleged injuries were all forward-looking, the

threat of which were eliminated by the Forest Service’s withdrawal of the memo and

8 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 9

repudiation of using aerial shooting again. As a result, the voluntary cessation

exception does not apply. See Rio Grande Silvery Minnow, 601 F.3d at 1119

(“[S]ome possibility that [the agency] would revert to its” previous challenged ways

is not “sufficient to warrant application of the voluntary-cessation exception.”).

B. Cases Capable of Repetition, Yet Evading Review

Another exception to the mootness doctrine is when “cases are capable of

repetition, yet evading review.” Unified Sch. Dist. No. 259, 491 F.3d at 1147.

(quotation marks omitted). “For a case to dodge dismissal for mootness under” this

exception, “‘there must be a reasonable expectation that the same complaining party

will be subjected to the same action again.’” 1 Id. (emphasis added) (quoting Hain v.

Mullin, 327 F.3d 1177, 1180 (10th Cir. 2003) (en banc)).

“[W]hen the legality of hypothetical future conduct depends on the specific

context and content of the disputed action,” a case seeking only prospective relief

“fails to meet the capable of repetition prong of the exception to mootness.” Id. at

1147–48 (internal quotation marks omitted). Because the Forest Service directed that

any future removal of the Gila cattle would be different than its previous, but now-

renounced aerial shooting method, the Cattle Growers are unlikely to face the same

action again. See, e.g., Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460

1 A party seeking to avoid mootness under the capable-of-repetition exception must also show “the duration of the challenged action [is] too short to be fully litigated prior to its cessation or expiration.” Hain, 327 F.3d at 1180. But because we conclude there is no reasonable expectation that the Cattle Growers will endure the same action, we need not address this prong. 9 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 10

F.3d 13, 22–23 (D.C. Cir. 2006) (“Particular decisions to remove wild [animals] are

highly fact-specific. How a herd will be managed in the future after the initial

culling is anyone’s guess . . . . If there are to be more roundups in the future—itself

an open question—it remains to be seen whether they will be of the same magnitude

as those which have come before, and whether the same criteria are applied.”).

The agency also directed its officers to utilize its impoundment regulations as

a framework for any future removal of feral cattle. This direction is “the precise

relief that [the Cattle Growers] requested”; as such, their “claim for declaratory and

injunctive relief with respect to the [Forest Service’s] old rule is therefore moot.”

N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 590 U.S. 336, 338–39

(2020) (per curiam).

We thus conclude the appeal is moot because neither exception applies.

C. Vacatur

“When a civil case becomes moot pending appellate adjudication, ‘[t]he

established practice . . . is to reverse or vacate the judgment below and remand with a

direction to dismiss.’” Lane v. Simon, 495 F.3d 1182, 1187 (10th Cir. 2007)

(alteration in original) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39

(1950)). “A party who seeks review of the merits of an adverse ruling, but is

frustrated by the vagaries of circumstance, ought not in fairness be forced to

acquiesce in the judgment.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513

U.S. 18, 25 (1994). “The same is true when mootness results from unilateral action

of the party who prevailed below.” Id. (emphasis added). Ultimately, “[w]hether any

10 Appellate Case: 25-2034 Document: 81-1 Date Filed: 06/03/2026 Page: 11

opinion should be vacated on the basis of mootness is an equitable question.” Rio

Grande Silvery Minnow, 601 F.3d at 1129 (quotation marks omitted).

Although we recognize and appreciate the district court’s thorough and

persuasively reasoned order, we must vacate its judgment in fairness to the Cattle

Growers. The Forest Service—the prevailing party below—took unilateral action

that mooted this case; the Cattle Growers, now deprived of their opportunity to

appeal, should not be forced to acquiesce in the judgment. See U.S. Bancorp Mortg.

Co., 513 U.S. at 25. See also Munsingwear, 340 U.S. at 40 (Vacatur “clears the path

for future relitigation of the issues between the parties . . . .”).

III. Conclusion

For these reasons, we dismiss the appeal as moot, vacate the district court’s

judgment, and remand with directions to dismiss.

Entered for the Court

Timothy M. Tymkovich Circuit Judge