Southern Utah Wilderness Alliance v. Smith

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 25 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SOUTHERN UTAH WILDERNESS
ALLIANCE, a Utah non-profit
corporation,

Plaintiff-Appellant,

v.
No. 95-4145
VERLIN SMITH, in his official capacity
as Manager of the Bureau of Land
Management; BRUCE BABBITT, in his
official capacity as Secretary of the
Interior; and BUREAU OF LAND
MANAGEMENT,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 94-CV-983)

Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, Utah (Lori Potter,
Debra Asimus, Sierra Club Legal Defense Fund, Denver, Colorado, with her on the
briefs), for Plaintiff-Appellant.
Edward J. Shawaker (Lois J. Schiffer, Assistant Attorney General, Ellen J. Kohler, and
David C. Shilton, Attorneys, Department of Justice, with him on the brief), Washington,
D.C., for Defendants-Appellees.
Before ANDERSON, MCWILLIAMS, and WEIS,* Circuit Judges.

ANDERSON, Circuit Judge.

On October 12, 1995, SUWA filed suit against the defendants, alleging, among

other things, that the defendants violated section 7(a)(2) of the Endangered Species Act,

16 U.S.C. § 1536(a)(2), by not consulting the United States Fish and Wildlife Service (the

“FWS”) regarding the impact the BLM’s Moquith Mt. WSA Management Guidance and

Schedule might have on Welsh’s Milkweed, a threatened species. After hearing cross-

motions for summary judgment, the district court found the defendants had not violated

section 7(a)(2) and entered summary judgment denying SUWA’s claim. Alternatively,

the district court determined the claim was moot. This appeal followed.

Having independently reviewed the record, we agree with the district court that

SUWA’s section 7(a)(2) claim is moot. For the following reasons, we vacate the portion

of the district court’s judgment relating to SUWA’s section 7(a)(2) claim, and remand

with directions that the claim be dismissed.

Honorable Joseph F. Weis, Jr., Senior Circuit Judge, United States Court of
*

Appeals for the Third Circuit, sitting by designation.
 I.

The Moquith Mountain Wilderness Study Area (“WSA”), located in Kane County,

Utah, is managed by the BLM. Among other things, the WSA includes part of the “Coral

Pink Sand Dunes.” Other portions of the Dunes are located within the Coral Pink Sand

Dunes State Park. Since at least the early 1980s, visitors have used off-road vehicles

(“ORVs”) both in the State Park and the WSA.

In 1987, Welsh’s Milkweed was listed as a threatened species under the

Endangered Species Act, and the Coral Pink Sand Dunes were designated as critical

habitat. Appellant’s App. at 43. In 1992, the FWS promulgated a Welsh’s Milkweed

Recovery Plan. The “immediate objective” of the Recovery Plan is to manage the

Milkweed’s habitat “so that viable populations can be maintained throughout the range of

the species.” Id. at 49. The Recovery Plan’s long-term objective is to delist the

Milkweed by achieving long-term demographic stability among Milkweed populations.

Id.

Since 1983, the BLM has monitored Milkweed populations within the Dunes. In

1990, the BLM formed a Moquith Mt./Parunuweap Canyon Multiple Land Use Steering

Committee. Supp. App. at 39. The BLM requested the FWS’ participation on this

committee, and the FWS designated Larry England as its representative. Id. Mr. England

was the FWS employee responsible for monitoring the Milkweed and for preparing the

1992 Recovery Plan. Id. The Committee met regularly throughout 1990 and 1991. The

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FWS was always invited to attend these meeting, and Mr. England attended frequently.

See id. at 52, 56, 63.

The Committee’s final management recommendations were issued in September,

1991. Id. at 64-84. In these recommendations, the Committee explicitly addressed the

impact of ORV use on the Milkweed, stating that the precise impact of ORV use on the

Milkweed was not yet known, and that the “BLM, in coordination with the [FWS], should

implement research studies that can determine the impacts of ORV’s on plant survival.”

Id. at 69. The Committee also made several recommendations regarding ORV use

generally which were aimed at bringing ORV use within the WSA into harmony with

previously established management goals.

In 1992, the BLM formed an interdisciplinary team to carry on the work begun by

the Steering Committee. Id. at 132. Again, Mr. England participated on the team as an

FWS representative. Id. at 134, 135. Among other things, the team discussed ORV

impact on the Milkweed, and considered immediate actions the BLM could take to limit

trails developing in the Dunes and to limit camping and campfires. Id. at 173-75. On

February 19, 1993, Mr. England also attended a Milkweed Recovery Meeting sponsored

by the BLM, where ORV impact on the Milkweed was again discussed. Id. at 160-63.

On February 28, 1994, the BLM issued the Moquith Mt. WSA Management

Guidance and Schedule (the “Schedule”). The Schedule’s objective was to “identify

areas within the WSA that are receiving unauthorized vehicle use and implement

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management actions that will discourage and curtail this use.” Appellant’s App. at 72.

The Schedule required the closing of several ORV routes to the Dunes, and restricted

camping and campfires. While not eliminating ORV use entirely, the Schedule noted

explicitly that the closure of certain ORV access routes was intended to protect Milkweed

Habitat. Id. at 77.

On October 12, 1994, SUWA filed suit against the defendants, alleging (1) that the

BLM violated section 7(a)(2) of the ESA by not consulting the FWS prior to

implementing the Schedule, (2) that the Schedule violated section 7(a)(1) of the ESA by

failing to conserve the Milkweed as required by the FWS Recovery Plan, and (3) that the

Schedule failed to prevent unnecessary degradation of public resources. Id. at 1-9

(Complaint). SUWA requested a declaratory judgment noting the violations, and an

injunction compelling the defendants to “stay implementation of the Schedule, to consult

with the U.S. Fish and Wildlife Service regarding the impacts of ORV use on Welsh’s

milkweed, to implement the recommendations of the Recovery Plan within the WSA, and

to prevent any unnecessary or undue degradation to the Welsh’s milkweed and the

milkweed’s critical habitat.” Id. at 8-9.

The BLM filed the administrative record with the district court on February 9,

1995. SUWA moved to strike Documents 68 and 69, the last two documents in the

administrative record. Document 68 is a letter, dated February 2, 1995, from the BLM to

the FWS. Appellant’s App. at 97. The letter sets forth the “chronological record” of the

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two Agencies’ consultations regarding ORV impact on the Milkweed. The letter also

requests the FWS’ “concurrence regarding the actions and conclusions resulting from

informal consultation that have taken place thus far.” Id. at 101.

Document 69 is the FWS’ response to the BLM’s February 2 missive. By letter

dated February 6, 1995, the FWS acknowledged its “informal interagency consultation”

with the BLM regarding the BLM’s actions affecting the Milkweed, and praised the BLM

for its “accomplished and continuing conservation efforts for Asclepais welshii identified

in the Welsh’s milkweed recovery plan.” Id. at 102. The FWS also stated:

The Service has reviewed the Bureau’s Moquith Mt. WSA Management
Guidance and Schedule (management guidance). Implementation of the
management guidance will not adversely affect Asclepais welshii.
Furthermore, the Service finds the above management guidance to be
consistent with stated goals of the Welsh’s milkweed recovery plan and a
start in the implementation of [recovery plan tasks]. The Service
recommends that the management guidance remain in effect until the RMP
and HMP are developed and a formal land management plan and
designation is extended to the Dunes.

Id. at 103.

SUWA’s motion to strike Documents 68 and 69 was based on the contention that

these letters were post hoc rationalizations for a prior agency action, and were not part of

the administrative record at the time the BLM decided to implement the Schedule. The

district court granted SUWA’s motion to strike in part. The district court refused to

consider Documents 68 and 69 in the context of what information was before the BLM at

the time it implemented the Schedule. The court accepted Documents 68 and 69,

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however, for the limited purpose of demonstrating whether informal consultation between

the Agencies had occurred. Id. at 22 (Order filed June 21, 1995).

After hearing cross-motions for summary judgment, the district court denied all

three of SUWA’s claims on the merits. The district court also found that SUWA’s

section 7(a)(2) claim was moot because the “relief sought has been obtained.” Id. at 21.

SUWA appeals only the denial of the section 7(a)(2) “failure to consult” claim. The only

relief SUWA requests is a declaration that the defendants violated section 7(a)(2), and an

injunction staying implementation of the Schedule and ordering the BLM to consult the

FWS.

II.

A. Injunctive Relief

On appeal, the defendants argue, among other things, that the district court was

correct in finding SUWA’s claim moot. They contend that even if the BLM did not

complete its consultation with the FWS prior to implementing the Schedule, such

consultation has now been completed. Since consultation is the only relief sought by

SUWA, the defendants conclude that the relief has already been obtained and an

injunction would be unnecessary. We agree.

Article III mootness is “the doctrine of standing set in a time frame: The requisite

personal interest that must exist at the commencement of the litigation (standing) must

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continue throughout its existence (mootness).” Arizonans For Official English v.

Arizona, ___ U.S. ___, 1997 WL 84990, at *14 n.22 (U.S. March 3, 1997) (quoting

Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363,

1384 (1973)). A federal court has no power to give opinions upon moot questions or

declare principles of law which cannot affect the matter in issue in the case before it.

Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992). Thus, to be

cognizable, a suit must be “a real and specific controversy admitting of specific relief

through a decree of a conclusive character.” Preiser v. Newkirk, 422 U.S. 395, 401

(1975) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)). If an event

occurs while a case is pending that heals the injury and only prospective relief has been

sought, the case must be dismissed. Fund for Animals v. Babbitt, 89 F.3d 128, 133 (2d

Cir. 1996).

Closely related to Article III mootness is the “prudential mootness” arising from

doctrines of remedial discretion. Prudential mootness addresses “not the power to grant

relief but the court’s discretion in the exercise of that power.” Chamber of Commerce v.

United States Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980). In some

circumstances, a controversy, though not moot in the strict Article III sense, is “so

attenuated that considerations of prudence and comity for coordinate branches of

government counsel the court to stay its hand, and to withhold relief it has the power to

grant.” Id. We have expressly recognized the doctrine of prudential mootness, and have

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stated that it has particular applicability in cases, such as this one, where the relief sought

is an injunction against the government. Building & Constr. Dep’t v. Rockwell Int’l

Corp., 7 F.3d 1487, 1492 (10th Cir. 1993); New Mexico v. Goldschmidt, 629 F.2d 665,

669 (10th Cir. 1980). Under both Article III and prudential mootness doctrines, the

central inquiry is essentially the same: have circumstances changed since the beginning of

litigation that forestall any occasion for meaningful relief. 13A Charles Alan Wright et

al., Federal Practice and Procedure § 3533.3 (2d ed. 1984). For the following reasons, we

find this suit is mooted under either doctrine.

As it relates to this case, section 7(a)(2) requires the BLM, in consultation with the

FWS, to insure that any action the BLM authorizes, funds, or carries out is not likely to

jeopardize the continued existence of a listed species, or result in the destruction or

adverse modification of the species’ habitat. See 16 U.S.C. § 1536(a)(2). The regulations

promulgated under section 7(a)(2) provide that this consultation may be formal or

informal:

§ 402.13 Informal Consultation

(a) Informal consultation is an optional process that includes all
discussions, correspondence, etc., between the Service and the Federal
agency . . . designed to assist the Federal agency in determining whether
formal consultation or a conference is required. If during informal
consultation it is determined by the Federal agency, with the written
concurrence of the Service, that the action is not likely to adversely affect
listed species or critical habitat, the consultation process is terminated, and
no further action is necessary.

§ 402.14 Formal Consultation

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 (b) Exceptions. (1) A Federal agency need not initiate formal
consultation if, . . . as a result of informal consultation with the Service
under § 402.13, the Federal agency determines, with the written
concurrence of the Director, that the proposed action is not likely to
adversely affect any listed species or critical habitat.

50 C.F.R. §§ 402.13(a), 402.14(b) (emphasis added). Thus, section 7(a)(2) does not

require formal consultation if the BLM has informally consulted the FWS, the FWS has

issued a written concurrence in the action, and that concurrence is not arbitrary or

capricious.

SUWA alleges that the BLM did not receive the FWS’ written concurrence until

after it began implementing the Schedule. It may well be that this violated section

7(a)(2). The record demonstrates, however, that the BLM has now completed informal

consultation and has received the FWS’ concurrence. In Document 68, its February 2,

1995 letter to the FWS, the BLM reviewed the two Agencies’ long history of consultation

regarding how best to protect the Milkweed from potentially harmful ORV use. The

BLM explained the reasons for the Schedule and requested the FWS’ concurrence.

Document 69 is the FWS’ written concurrence. In that document, the FWS not

only praises the BLM’s actions in protecting the Milkweed, but explicitly states that the

Schedule will not adversely impact the Milkweed. Furthermore, the FWS states that the

Schedule is consistent with the 1992 Milkweed Recovery Plan, and recommends that the

BLM keep the Schedule in place until a new management plan for the entire region is

developed. This fully satisfies the consultation requirement of section 7(a)(2): “If during

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informal consultation it is determined by the Federal agency, with the written concurrence

of the Service, that the action is not likely to adversely affect listed species or critical

habitat, the consultation process is terminated, and no further action is necessary.” 50

C.F.R. § 402.13(a) (emphasis added). An injunction ordering consultation is no longer

warranted. There is no point in ordering an action that has already taken place. Cf. Lone

Rock Timber Co. v. United States Dep’t of Interior, 842 F. Supp. 433, 438 (D. Or. 1994)

(finding moot the request for an injunction ordering the FWS to issue biological opinions,

where the FWS issued the opinions during the pendency of the action).

Indeed, SUWA does not explain how an injunction ordering another round of

consultation would provide any meaningful relief. SUWA does not show any reasonable

likelihood that such an order would result in any changes to the Schedule, or that either

the BLM or the FWS would change its position on the Schedule. If anything, the record

suggests the opposite would be most likely; the FWS has praised the Schedule and has

recommended that it remain in place until formal planning for the larger region is

conducted. Thus, ordering another round of consultation would confer only the most

speculative benefit upon SUWA, and would not constitute effective relief.

Even more basic, SUWA does not explain how any injury still flows from the

alleged violation. At bottom, section 7(a)(2) is a mechanism for ensuring that a federal

agency work closely with the FWS in formulating and implementing actions that could

affect threatened or endangered species. During the period leading up to the Schedule’s

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implementation, the BLM worked closely with the FWS in developing appropriate

management strategies for the Milkweed, and the FWS has now expressly approved the

Schedule’s implementation. Therefore, if SUWA still suffers some alleged injury as a

result of the Schedule’s implementation, that injury must flow from the content of the

Schedule, not from the BLM’s delay in completing consultation with the FWS. SUWA

challenged the content of the Schedule in its second and third causes of action in the

district court. Those substantive attacks on the Schedule were denied on the merits, and

SUWA did not appeal that denial.

An exception to the mootness doctrine arises in cases which are capable of

repetition, yet evading review. Fischbach v. New Mexico Activities Ass’n, 38 F.3d 1159,

1161 (10th Cir. 1994). SUWA does not allege, however, that this case falls within that

narrow exception. There is no showing that the BLM is likely to violate section 7(a)(2)

in connection with some future Agency action, nor that the challenged action is of the

type typically too short in duration to be fully litigated prior to its cessation.

SUWA raises three arguments as to why this suit should not be considered moot,

but none are persuasive. First, SUWA renews its contention that Documents 68 and 69

should be stricken from the record because they were not part of the record at the time the

BLM decided to implement the Schedule, and are merely post hoc rationalizations for the

BLM’s action. Although relevant to whether summary judgment was appropriate, this

argument has no bearing on the issue of mootness. By definition, mootness concerns

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events occurring after the alleged violation. Even if Documents 68 and 69 cannot be

considered for the purposes of determining whether the BLM originally violated section

7(a)(2), they can be considered in determining whether the relief SUWA seeks has

already been obtained. See, e.g., Cedar Coal Co. v. United Mine Workers of Am., 560

F.2d 1153, 1166-67 (4th Cir. 1977) (considering documents filed after the district court

order for purposes of determining mootness, but not for purposes of ascertaining the

merits).

Second, SUWA argues that section 7(a)(2) requires consultation and written

concurrence prior to, rather than after, Agency action, suggesting presumably that the

BLM’s subsequent consultation could not moot this case. Appellant’s Br. at 19. This

begs the question. Subsequent consultation is precisely the relief SUWA seeks. If some

other form of meaningful relief is available for this alleged injury, SUWA has not

requested it.

Third, SUWA asserts that its request for injunctive relief is not moot because the

BLM must formally, rather than informally, consult the FWS. SUWA claims that formal

consultation is required because it has produced evidence in the district court showing

that ORV use “may affect” the Milkweed. This argument does not square with the

regulations, which speak of the FWS’ concurrence that the action is not likely to

adversely affect a threatened species. If, after informal consultation, the BLM obtains the

FWS’ concurrence, formal consultation is expressly not required. Although SUWA may

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disagree with the FWS’ concurrence, we are not persuaded that either the FWS or the

BLM has acted arbitrarily or capriciously in determining that no adverse affect is likely

and that no formal consultation is required in this case.

In sum, the defendants have satisfied section 7(a)(2)’s consultation requirement,

and SUWA has not shown that an injunction would redress any injury. This is not to say

that a violation of section 7(a)(2) could always be cured by subsequent consultation, nor

is this general approval for consultation after the fact. Instead, this merely recognizes

that the changed circumstances of this particular case no longer present an opportunity for

meaningful relief.

B. Declaratory Relief

For the same reasons that injunctive relief is not available, a declaratory judgment

also is not available. A declaratory judgment would serve no purpose in this case. This

case does not involve a continuing violation or practice, and SUWA has not shown that

the defendants are likely to violate section 7(a)(2) in the near future. A declaratory

judgment would not affect the matter, and would be in the nature of an advisory opinion.

See, e.g., Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996); Native Village of Noatak

v. Blatchford, 38 F.3d 1505, 1514 (9th Cir. 1994).

III.

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 For the foregoing reasons, neither we nor the district court have further jurisdiction

in this matter. We VACATE the district court’s judgment relating to SUWA’s section

7(a)(2) claim, and REMAND with directions that the claim be dismissed. And, even if

this suit were not moot in the strict Article III sense, we would nevertheless affirm the

district court order denying relief on considerations of prudential mootness. See

Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1019-20 (D.C. Cir. 1991); Goldschmidt,

629 F.2d at 669; see also A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324,

331 (1961).

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No. 95-4145, Southern Utah Wilderness Alliance v. Smith, et al.

McWilliams, J., dissents.

In my opinion the district court’s judgment is so sketchy that we cannot make a

meaningful review thereof. Furthermore, on the record before us, I am not inclined to

decide matters that should more properly be resolved, in the first instance, by the trial

court.