Wilbur Slockish v. Usdot

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2021
• Docket: 21-35220
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 24 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILBUR SLOCKISH, Hereditary Chief No. 21-35220 of the Klickitat/Cascade Tribe; CAROL LOGAN, a resident of Oregon, and an D.C. No. 3:08-cv-01169-YY enrolled member of the Confederated Tribes of the Grand Ronde; CASCADE GEOGRAPHIC SOCIETY, an Oregon MEMORANDUM* nonprofit corporation; MOUNT HOOD SACRED LANDS PRESERVATION ALLIANCE, an unincorporated nonprofit association,

Plaintiffs-Appellants,

v.

U.S. DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION, an Agency of the Federal Government; U.S. DEPARTMENT OF THE INTERIOR; BUREAU OF LAND MANAGEMENT, an Agency of the Federal Government; ADVISORY COUNCIL ON HISTORIC PRESERVATION, an Agency of the Federal Government,

Defendants-Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted November 16, 2021 San Francisco, California

Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

Plaintiffs Hereditary Chief Wilbur Slockish, Carol Logan, Cascade

Geographic Society, and Mount Hood Sacred Lands Preservation Alliance appeal

from the district court’s grants of summary judgment to Defendants United States

Department of Transportation, Federal Highway Administration (“FHWA”),

United States Department of the Interior, Bureau of Land Management (“BLM”),

and Advisory Council on Historic Preservation.

Plaintiffs allege that Defendants’ actions with respect to a 0.74-acre site

located within a highway expansion project completed by the Oregon Department

of Transportation (“ODOT”) violated the Religious Freedom Restoration Act, the

Free Exercise Clause of the First Amendment, the National Environmental Policy

Act, the National Historic Preservation Act, the Federal Land Policy and

Management Act, and Section 4(f) of the Department of Transportation Act. We

conclude that this appeal is moot and that we therefore lack jurisdiction.

2 “The case or controversy requirement of Article III . . . deprives federal

courts of jurisdiction to hear moot cases.” Native Vill. of Nuiqsut v. BLM, 9 F.4th

1201, 1208 (9th Cir. 2021) (quoting NAACP, W. Region v. City of Richmond, 743

F.2d 1346, 1352 (9th Cir. 1984)). “A case becomes moot only when it is

impossible for a court to grant any effectual relief whatever to the prevailing

party.” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)

(citation and quotations omitted). A case is not moot if “there can be any effective

relief.” Wild Wilderness v. Allen, 871 F.3d 719, 724 (9th Cir. 2017) (emphasis in

original) (quoting Or. Nat. Res. Council v. BLM, 470 F.3d 818, 820 (9th Cir.

2006)).

ODOT, which owns the right-of-way for the highway that encompasses the

site, was dismissed from this case in 2012 based on Eleventh Amendment

immunity. The remaining Defendants are federal agencies that cannot order the

outright removal of the challenged highway expansion. The district court

concluded that the court could nonetheless “craft some relief that would mitigate

Plaintiffs’ injury.” Plaintiffs specifically identify the relief that they seek. That

relief falls short of removing the highway expansion, but it contemplates

restoration of highway access to E. Wemme Trail Road, replacement of vegetation,

reconstruction of the rock pile, removal of the sloped earthen embankment over the

3 site, and removal of the guard rail. This relief would partially restore the site to

the status quo ante, but this relief would make changes to aspects of the highway

project that ODOT designed and implemented based on its judgment that those

aspects improved highway safety. Because ODOT has been dismissed from this

suit, none of the Defendants has authority to make the changes sought by Plaintiffs.

Pursuant to an easement previously granted by FHWA, ODOT owns a right-

of-way easement over BLM land. The easement encompasses the entire site of the

highway widening project. The easement reserves limited rights for BLM to use or

authorize the use of the highway for non-highway purposes, but it expressly

precludes BLM from doing so when it would “impair the full use and safety of the

highway” or would otherwise be “inconsistent with the provisions of Title 23 of

the United States Code.”

The language of the easement, in combination with ODOT’s dismissal,

renders the case moot. All of the relief sought by Plaintiffs implicates highway

safety. As ODOT and FHWA explain in the Environmental Assessment, the

removal of highway access to E. Wemme Trail Road, the removal of vegetation

and the rock pile, the addition of the earthen embankment, and the addition of the

guard rail were all conducted for the purpose of improving the safety of the

highway. As a result, BLM’s limited reservation of rights to use or authorize the

4 use of the highway for non-highway purposes would not permit it to undo those

actions.

Plaintiffs’ claims for declaratory relief are also moot. Declaratory relief

must correspond with a separate remedy that will redress Plaintiffs’ injuries.

California v. Texas, 141 S. Ct. 2104, 2115-16 (2021) (explaining that the

Declaratory Judgment Act “alone does not provide a court with jurisdiction,” and

that courts must “look elsewhere to find a remedy that will redress plaintiffs’

injuries”). “[A] declaratory judgment may not be used to secure judicial

determination of moot questions.” Nome Eskimo Cmty. v. Babbitt, 67 F.3d 813,

816 (9th Cir. 1995) (quotations omitted) (quoting Native Vill. of Noatak, 38 F.3d

1505, 1514 (9th Cir. 1994)). Plaintiffs’ claims for declaratory relief that

correspond to their claims for injunctive relief are therefore moot.

Plaintiffs’ claim for damages is barred by federal sovereign immunity. See

Price v. United States, 174 U.S. 373, 375-76 (1899).

Because we cannot order any effective relief, this appeal is moot. Although

Defendants’ “burden of demonstrating mootness is a heavy one,” that burden is

carried here. Nw. Env’t Defense Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.

1988) (citing Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).

DISMISSED.