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American Wild Horse Preservation Campaign, et al v. Ken Salazar

August 8, 2011

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY, DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Amy Berman JACKSONUnited States District Judge

MEMORANDUM OPINION

This case involves a challenge to an administrative decision that was rescinded after the filing of the complaint, and therefore, the action is now moot.

In their complaint, plaintiffs challenged a June 13, 2011 decision by the Bureau of Land Management of the Department of the Interior, as it was modified on June 22, 2011 ("the Modified Decision"), to round up 90% of the wild horses from the White Mountain and Little Colorado Herd Management Areas ("HMAs") in Wyoming and to return no females and only surgically castrated males to the herds. Compl. ¶¶ 1, 40--41. The plaintiffs alleged that this decision was made in violation of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., The Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq., and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Compl. ¶¶ 2--4; 56--68. Plaintiffs asked the Court to declare that decision to be in contravention of law, and in their complaint and their motion for preliminary injunction, they asked the Court to enjoin the defendants from taking the proposed action.

On August 5, 2011, the defendants notified the Court and the parties that the modified decision had been rescinded, and that on August 4, the agency issued a Second Modified Decision Record, calling for a different course of action involving fertility control treatment of mares with the porcine zona pellucida (PZP) vaccine. See Notice of Second Modified Decision Record and the Exhibit attached thereto [Dkt. #11]. Since the decision under review has no operative effect, the Court is bound to dismiss the case for lack of subject matter jurisdiction. "The case has thus lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract [questions] of law." Schering Corp. v. Shalala, 995 F.2d 1103, 1106 (D.C. Cir. 1993) (internal quotation marks omitted).

Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is an Art[icle] II as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

Article III, section 2 of the Constitution permits federal courts to adjudicate only "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317 (1988). "This limitation gives rise to the doctrines of standing and mootness." Foretich v. United States, 351 F.3d 1198, 1210 (D.C. Cir. 2003). A case is moot 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." Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990). "It has long been settled that a federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Sierra Club v. Jackson, --- F.3d ---, Civ. No. 10-5280, 2011 WL 2600841, at *2 (D.C. Cir. July 1, 2011) (internal quotation marks omitted), quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992). In light of those principles, this Court must dismiss the case. It has not been appointed to serve as a special monitor, overseeing the agency's implementation of the Wild Free Horses and Burros Act indefinitely.

During the telephone conference with the Court on August 2, 2011, when the government first indicated its intention to withdraw the Modified Decision, the plaintiffs suggested that since their challenge was to an action that involved both gelding and gathering, the Court should retain jurisdiction over the matter. But the lawsuit was not an all-purpose objection to wild horse management efforts in general -- it was specifically addressed to the combination of gathering and gelding involved in the Modified Decision, and in particular, it was the extreme and irreversible nature of the particular method selected for thinning the herd that animated the complaint. See, e.g., Compl. ¶¶ 1--5. ("This case challenges a recent, precedent-setting decision by the Interior Department's Bureau of Land Management ("BLM") to roundup and convert a viable, free-roaming wild horse population currently inhabiting over 700,000 acres of public lands in the state of Wyoming to a 'minimally-reproducing' population comprised primarily of castrated stallions, an action that will irreparably disrupt and destroy the social organization, natural wild and free-roaming behavior and viability of these herds.")

Moreover, all of the Declarations attached to plaintiffs' motion for preliminary injunction addressed the environmental, behavioral, genetic, physiological, aesthetic, social, and/or ecological effects of the particular population management approach embodied in the modified decision: castration. See Declaration of Allen Rutberg, Exhibit L to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction [Dkt. #5], ¶¶ 12--23; Declaration of Anne Perkins, Exhibit M, ¶¶ 6--11; Declaration of Bruck Nock, Exhibit N, ¶¶ 10--19; Declaration of Jay Kirkpatrick, Exhibit O, ¶¶ 7--10; Declaration of Neda Mayo, Exhibit P, ¶¶ 8--16; Declaration of Lori Eggert, Exhibit S, ¶¶ 5--10; Declaration of Carol Walker, Exhibit X, ¶¶ 6--9; Declaration of Donna Duckworth, Exhibit Y, ¶¶ 9-11; and Declaration of Jonathan B. Ratner, Exhibit Z, ¶¶ 16--19. Thus, the pending action was inextricably bound to the particular "radical" and "controversial" "chosen course of action" that has since been abandoned. See Compl. ¶¶ 2, 4--5.

During the next telephone conference, on August 5, 2011, the plaintiffs expressed a different concern and urged the Court not to dismiss the action on the grounds that the agency action was "capable of repetition yet evading review." They indicated that there were at least four more BLM decisions in the works -- involving different HMAs -- in which the agency had indicated an intention to utilize gelding to reduce the herds. According to the plaintiffs, three of those decisions are not yet final, but the agency has issued at least one final decision involving "a gelding component" in another location. See Pls.' Notice of Authorities at 1.*fn1 Plaintiffs informed the Court on August 8, 2010, that a final decision has been made by the BLM to gather and geld to some unspecified extent at the Barren Valley Complex in southeastern Oregon. Therefore, plaintiffs argue that the Court should not dismiss the present action, and it should permit the plaintiffs to expand the case to include other pending and future gelding plans. Id.

The Court finds that this is not a basis to decline to dismiss the action. This is not a situation where something happened once, it will definitely happen again, and the injured party needs to be able to get the court's attention at some point after the first event but before the second or it will lose its chance to prevent further injury. Rather, this is a challenge to a decision made on the record by a federal agency, which is not something that eludes judicial review.

The capable of repetition yet evading review exception to mootness involves two requirements: "1) the challenged action must be too short to be fully litigated prior to cessation or expiration; and 2) there must be a reasonable expectation that the same complaining party will be subject to the same action again." Honeywell Intern., Inc., v. Nuclear Regulatory Comm'n., 628 F.3d 568, 577 (D.C. Cir. 2010) (internal quotation marks omitted). Neither requirement has been established here. Given the availability of temporary injunctive relief under Fed. R. Civ. P. 65 -- the very rule invoked in this case -- any future final agency decision can be reviewed before it is even initiated, and therefore, the plaintiffs cannot establish that the action would be completed before the matter could be heard. When an agency action is "in no danger of expiring before judicial review is complete. It would be entirely inappropriate for this court to . . . issue an advisory opinion to guide the [agency's] rulemaking." National Wildlife Federation v. Hodel, 839 F.2d 694, 742 (D.C. Cir. 1988) (holding that Secretary of the Interior's failure to re-promulgate national mining regulations remanded to him by the District Court rendered challenge to those particular regulations moot).

The D.C. Circuit relied on this reasoning when it was asked to opine about a regulation that had been rendered moot by subsequent legislation.

This case does not fall within the 'capable of repetition, yet evading review' exception . . . because recurrence of the challenged activity will not 'evade review' should the parties' dispute recur. Even if the Commission were to adopt a revised regulatory scheme under the amended statute that purports to regulate attorneys, the new regulation will be subject to judicial review at that time.

American Bar Ass'n v. F.T.C., 636 F.3d 641, 648 (D.C. Cir. 2011) (emphasis in original). Similarly, any final wild horse management decision issued by BLM can be challenged in the manner that was utilized in this case, and if appropriate, it can be temporarily or permanently ...


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