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Fisheries Survival Fund v. Locke


June 24, 2009


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court on plaintiff's motion to stay and defendant's motion to dismiss as moot.*fn2 The parties agree that there is no basis for pursuing the case on the merits at this point because plaintiff has received the relief that it originally sought. They disagree, however, as to whether the Court should dismiss the case as moot or instead order that it be stayed because of a possibility that subsequent events will change the status quo. After careful consideration of the parties' papers and the relevant case law, the Court finds that the case is moot and will dismiss it.

On October 1, 2008, plaintiff a non-profit organization made up of Atlantic Scallop Fishing vessels, filed suit in this Court challenging a biological opinion (the "2008 Biological Opinion") issued by the National Marine Fisheries Service ("NMSF"), a designee of the Department of Commerce. See Complaint ¶¶ 1-2. NMSF subsequently amended the sections in the 2008 Biological Opinion which were challenged by plaintiff. See Pl. Mot. at 3-4. Plaintiff accepts the 2008 Biological Opinion as amended. See Pl. Rep. at 1.

As a result of defendant's amendment of the 2008 Biological Opinion, plaintiff has received all of the relief that it originally sought in this case. The Court is persuaded by defendant's arguments and the case law cited in defendant's papers that the case is moot. See Def. Mot. at 10 ("A case is moot when 'events have so transpired that [resolution of the case] will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.'") (citing Munsell v. USDA, 509 F.3d 572, 583 (D.C. Cir. 2007)); see also Def. Mot. at 10-12; Def. Rep. at 2-4. As the court of appeals has explained: "By constitutional design, a federal court is authorized only to adjudicate 'actual, ongoing controversies,' and thus may not 'give opinions upon moot questions or abstract propositions, or . . . declare principles or rules of law which cannot affect the matter in issue in the case before it.'" LLC v. Librarian of Congress, 394 F.3d 939, 950 (D.C. Cir. 2005) (internal citations omitted). See also Worth v. Jackson, 451 F.3d 854, 857 (D.C. Cir. 2006) (no federal subject matter jurisdiction exists where the case is not justiciable because it is moot); A.N.S.W.E.R. Coalition v. Kempthorne, 493 F. Supp. 2d 34, 42 (D.D.C. 2007) (same). In a case such as this, where, "events outrun the controversy such that the court can grant no meaningful relief, the case must be dismissed as moot." McBryde v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir. 2001).

The Court is unpersuaded by plaintiff's arguments to the contrary. Plaintiff argues that the case should not be dismissed as moot because of the existence of a pending, related case, Oceana, Inc. v. Locke, Civil Action No. 08-1881 (D.D.C.). Oceana, the plaintiff in the related case, challenges the 2008 Biological Opinion, seeking to have it vacated in its entirety. See id., Complaint, Dkt. No. 1 (D.D.C. October 31, 2008). Plaintiff believes that Oceana will amend its complaint to challenge the amendments to 2008 Biological Opinion as well. See Pl. Mot. at 4-5. In the event that Oceana does amend its complaint, and does not succeed in having the 2008 Biological Opinion as a whole vacated, but does succeed in having the amendments vacated, and the Court determines the appropriate remedy is to reinstate the original version of the 2008 Biological Opinion, plaintiff argues that its challenge to the original 2008 Biological Opinion would be viable.

This hypothetical string of events is far too tendentious to save plaintiff's claim from a finding of mootness. See Munsell v. Dep't of Agriculture, 509 F.3d at 583 ("speculation [as to future events], without more, 'does not shield a case from a mootness determination.'") (quoting City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283 (2001)); Van Valin v. Gutierrez, 587 F. Supp. 2d 118, 120 (D.D.C. 2008) ("While a defendant's voluntary cessation of a challenged practice does not deprive a federal court of jurisdiction . . . 'the case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated.'") (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). Plaintiff has not shown that the case falls into any of the exceptions to the mootness doctrine largely for the reasons articulated in defendant's briefs. See Def. Mot. at 12-14; Def. Rep. at 4-6. Nor does the legal authority upon which plaintiff relies support its position. The Court finds that the case is moot and therefore that it does not have subject matter jurisdiction. The case will be dismissed without prejudice - should the original 2008 Biological Opinion ever be reinstated, plaintiff may file suit to challenge it. See Van Valin v. Gutierrez, 587. F. Supp. 2d at 121 n.5. An order to accompany this Memorandum Opinion will issue this same day.

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