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THE FUND FOR ANIMALS, et al., Plaintiffs,
FRAN MAINELLA, et al., Defendants.

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.

I. Factual Background

  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.

  II. Standard of Review

  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. 1997).

  III. Legal Analysis

  (A) Is this Case Moot?

  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, 317 (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 ...

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