The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
On December 8, 2003, this Court issued a Memorandum Opinion
denying the plaintiffs' request for a temporary restraining order
to prevent a black bear hunt in a portion of the Delaware Water
Gap National Recreation Area located in the State of New Jersey.
Fund for Animals v. Mainella, 294 F. Supp. 2d 46, 59 (D.D.C.
2003). The merits of the case are still pending before this
Court, however, the defendants have now filed a motion to dismiss
this case contending that it has become moot. Currently before
the Court are (1) the Defendants' Motion to Dismiss ("Defs.'
Mot.") and (2) the Plaintiffs' Opposition to Defendants' Motion
to Dismiss, Alternative Motion to Vacate, and Memorandum in
Support Thereof ("Pls.' Opp.'n").*fn1 For the following
reasons, this Court grants the defendants' motion to dismiss and
denies the plaintiffs' motion for vacatur.
The facts of this case can be found in this Court's December 8,
2003 opinion and will only be briefly restated here. Mainella,
294 F. Supp. 2d at 48-50. On May 5, 2003, the State of New Jersey proposed a
regulation, 35 N.J. Reg. 4053(a) (Sept. 2, 2003), to authorize a
limited black bear hunt in the state from December 8, 2003 until
December 13, 2003. Memorandum In Support of Defendants' Motion to
Dismiss ("Defs.' Mem.") at 3. The goal of the hunt was to help
maintain a healthy, stable black bear population. Id. On
December 1, 2003, the plaintiffs filed a complaint and a motion
in this Court for a temporary restraining order to prevent the
hunt from proceeding. Mainella, 294 F. Supp. 2d at 48. The
plaintiffs' central argument was that because part of the land on
which the hunt was to be conducted was federal land, the
defendants Fran Mainella, Director of the National Park Service
and Gale Norton, Secretary of the U.S. Department of Interior
("federal defendants") had violated the Administrative
Procedure Act ("APA"), 5 U.S.C. § 706, by acting in a manner that
was arbitrary, capricious and not in accordance with the law.
Id. Specifically, the plaintiffs alleged that the federal
defendants had an obligation to: (1) promulgate hunting
regulations pursuant to the Delaware Gap Enabling Act,
16 U.S.C. § 460; (2) ensure that the hunting would not impair park
resources or result in "wanton destruction" of park wildlife
under the National Park Service Organic Act, 16 U.S.C. § 1 et
seq.; and (3) prepare documents addressing, inter alia, the
indirect environmental impact on National Park rsouces as
required under the National Environmental Policy Act,
42 U.S.C. § 4331. Id.; Complaint for Declaratory and Injunctive Relief
("Compl.") ¶¶ 93, 96, 100.
On December 5, 2003, "due to the limited amount of time the
Court had to consider the issues raised by the parties," this
Court issued a temporary restraining order. Mainella,
294 F. Supp. 2d at 48. However, on December 8, 2003, after a more
thorough review of the case, this Court concluded that the
plaintiffs were not entitled to injunctive relief. Id. The
defendants now move to dismiss the case as moot since the challenged black bear
hunt has ended. Defs.' Mem. at 4. The plaintiffs oppose the
request for dismissal and have filed a cross-motion seeking
vacatur of the Court's December 8, 2003 opinion if this Court
should determine the case is now moot.
Under Federal Rule of Civil Procedure 12(b)(1), which governs
motions to dismiss for lack of subject matter jurisdiction,
"[t]he plaintiff bears the burden of persuasion to establish
subject matter jurisdiction by a preponderance of the evidence."
Pitney Bowes, Inc. v. United States Postal Serv.,
27 F. Supp. 2d 15, 18 (D.D.C. 1998). In reviewing the
motion, this Court must accept as true all the factual allegations
contained in the complaint. Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163,
164 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it
is well established in this Circuit that a court is not limited to
the allegations in the complaint, but may also consider material
outside of the pleadings in its effort to determine whether the court
has jurisdiction in the case. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624-25 n. 3 (D.C. Cir. 1997);
Herbert v. Nat'l Academy of Sciences., 974 F.2d 192, 197 (D.C.
Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.
1987); Grand Lodge of Fraternal Order of Police,
185 F. Supp. 2d at 14. A motion to dismiss on the grounds of mootness is
properly brought under Rule 12(b)(1). See, e.g., Bracco
Diagnostics, Inc. v. Shalala, 1997 WL 614485, at *1 (D.D.C.
The defendants contend that when the black bear hunt ended on
December 13, 2003, the plaintiffs were unable to receive any relief from this Court.
Therefore, the defendants argue that the Court should dismiss
this case as moot pursuant to Rule 12(b)(1). Defs.' Mem. at 4.
The plaintiffs explain, however, and opine that the case is not
moot because the defendants have not shown that the black bear
hunt will not occur again in the future. Pls.' Opp.'n at 9.
The mootness doctrine limits federal courts to
deciding "actual, ongoing controversies." "Even where
the litigation poses a live controversy when filed,
the 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.'"
Lepelletier v. FDIC, 2001 WL 1491398 (D.C. Cir. 2001) (internal
citations omitted) (quoting Honig v. Doe, 484 U.S. 305
(1988); Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir.
1990)). However, a court will not apply the mootness doctrine and
dismiss a case if the challenged action is capable of repetition
but evading review. This disqualifier of the mootness doctrine is
"limited to situations where two elements [are] combined: (1) the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there
[is] a reasonable expectation that the same complaining party
[will] be subjected to the same action again." Weinstein v.
Bradford, 423 U.S. 147
, 149 (1975). Furthermore, "[i]t is well
settled that `a defendant's voluntary cessation of a challenged
practice does not deprive a federal court of its power to
determine the legality of the practice.'" Friends of the Earth,
Inc. v. Laidlaw Env. Serv., 528 U.S. 167
, 189 (2000) (citing
Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283
, 289 (1982)).
However, "`[a] case might become moot if [a defendant's]
subsequent [voluntary] events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to
recur.' The `heavy burden of persua[ding]' the court that the
challenged conduct cannot reasonably be expected to start up again lies with the party
asserting mootness." Id. at 189 (internal citation omitted).
In this case, the defendants assert that on December 13, 2003,
when the hunt ended as provided for in the New Jersey regulation,
this Court was unable to grant the plaintiffs any relief they
sought and thus this case became moot. Defs.' Mem. at 4.
Furthermore, the defendants contend that the "capable of
repetition, yet evading review" doctrine does not apply because
if black bear hunting is permitted in the future, the State of
New Jersey will be required to promulgate a new regulation in
accordance with the New Jersey Administrative Procedure Act,
N.J.S.A. 52:14B-1 to -15. Id. Thus, the defendants conclude
that any new rulemaking would likely be based upon new and
different facts and "provide [the] plaintiffs with ample
opportunity to bring a challenge. . . ." Defs.' Mem. at 4-5.
Furthermore, the defendants posit that this case does not fall
under the Laidlaw exception to the mootness doctrine because it
was the New Jersey state regulation, promulgated under the New
Jersey Administrative Procedure Act, that ended the hunt and not
any action by the federal defendants. Reply in Support of
Defendants' Motion to Dismiss ("Defs.' Reply") at 2. Thus, while
the federal defendants concede that the bear hunt could occur
again in the future, they argue it would not be based upon their
conduct, but rather, based on the actions of the State of New
Jersey. Id. at 3.
The plaintiffs contend that this case is not moot. Pls.' Opp.'n
at 9. Relying on Laidlaw, the plaintiffs argue that the
defendants have not demonstrated that "it is `absolutely clear'
that these actions cannot `reasonably be expected to recur.'"
Id. The plaintiffs argue that although this Court cannot grant
the plaintiffs relief regarding the 2003 hunting season, this
Court can grant relief regarding future hunting seasons.
Therefore, they argue that this case should not be dismissed as moot. Id. at 9-10.*fn2
This Court agrees with both parties that it cannot grant the
plaintiffs relief with respect to the 2003 hunting season, as it
has already expired. Pls.' Opp.'n at 9-10. See American Fed'n
of Gov't Employees, AFL-CIO v. United States, 330 F.3d 513, 518
(D.C. Cir. 2003) (declaring moot a claim for relief, which sought
an injunction against the enforcement of a ...