Nw. Ctr. for Alternatives to Pesticides v. Usdhs

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 20, 2023
• Docket: 21-35751
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NORTHWEST CENTER FOR No. 21-35751 ALTERNATIVES TO PESTICIDES; et. al., D.C. No. 3:20-cv-01816-IM Plaintiff-Appellant,

v. MEMORANDUM*

U.S. DEPARTMENT OF HOMELAND SECURITY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding

Argued and Submitted October 7, 2022 Portland, Oregon

Before: OWENS and MILLER, Circuit Judges, and PREGERSON,** District Judge.

Plaintiffs Northwest Center for Alternatives to Pesticides, Willamette

Riverkeeper, Cascadia Wildlands, Neighbors for Clean Air, and 350PDX

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. (collectively “NCAP”) appeal the district court’s grant of Defendants’ (U.S.

Department of Homeland Security and its Secretary Alejandro Mayorkas,

collectively “DHS”) motion to dismiss. We have jurisdiction under 28 U.S.C.

§ 1291, and we dismiss this appeal as moot.1

NCAP alleges that DHS violated the National Environmental Policy Act

(“NEPA”) by not preparing an environmental analysis for Operation Diligent

Valor, which deployed additional law enforcement personnel to Portland and used

various riot control agents, including tear gas and other chemical agents, for crowd

control. DHS argues that NCAP’s sole claim is moot because Operation Diligent

Valor has ended. Although NCAP does not concede that Operation Diligent Valor

is over, NCAP does not assert that DHS is continuing to use tear gas and other

chemical agents in Portland.

The end of DHS’s use of tear gas and other chemical agents in Portland

during Operation Diligent Valor renders NCAP’s claim moot unless “the violation

complained of may have caused continuing harm and . . . the court can still act to

remedy such harm by limiting its future adverse effects.” Feldman v. Bomar, 518

F.3d 637, 643 (9th Cir. 2008) (citation omitted). NCAP argues that belated NEPA

analysis would limit future adverse effects because (1) chemicals used by DHS

entered the Willamette River, and if these chemicals were analyzed, any pollution

1 DHS’s motion to supplement the record (Dkt. No. 29) is granted. 2 they are causing could be better addressed, (2) NCAP’s members have ongoing

injuries that may be better treated if they can identify the type and quantity of

chemicals they were exposed to, (3) DHS may decide, based on the results of

belated analysis, not to use the same type or quantity of chemicals in the future,

and (4) DHS may itself take action to mitigate any environmental harms that it

caused.

We find that NCAP’s arguments are too speculative. Contrary to NCAP’s

contention, this case is unlike Columbia Basin, in which the offending power lines

were still in operation and could be moved. See Columbia Basin Land Prot. Ass’n

v. Schlesinger, 643 F.2d 585, 591 n.1 (9th Cir. 1981). The possibility that a belated

NEPA analysis would improve mitigation or change DHS conduct in the future is

too remote and speculative under our precedent. See, e.g., Friends of the Earth,

Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978).

As for the possibility that DHS’s use of chemical agents is capable of

repetition and would otherwise evade review, Spencer v. Kemna, 523 U.S. 1, 17

(1998), NCAP has not met its burden to invoke this exception. Specifically, NCAP

did not establish that DHS regularly causes the injuries alleged here, let alone that

DHS is likely to inflict the same injuries on NCAP in the future. See Sample v.

Johnson, 771 F.2d 1335, 1342 (9th Cir. 1985) (collecting cases “placing the burden

for showing a likelihood of recurrence firmly on the plaintiff”).

3 Because we find NCAP’s claim moot, we decline to reach DHS’s other

arguments.

DISMISSED.