Wyoming v. United States Department of Interior

FILED
United States Court of Appeals
Tenth Circuit

November 24, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF WYOMING; PARK
COUNTY COMMISSIONER HALL, in
his official capacity, a/k/a Bucky Hall;
PARK COUNTY COMMISSIONER
FRENCH, in his official capacity, a/k/a
Tim A. French; PARK COUNTY
COMMISSIONER BREWER, in his
official capacity, a/k/a Bill Brewer;
PARK COUNTY COMMISSIONER
SIGGINS, in her official capacity, a/k/a
Jill Shockley Siggins; PARK COUNTY
COMMISSIONER FONTAINE, in her
official capacity, a/k/a Marie A. Fontaine,

Petitioners-Appellees,

v.
No. 09-8035
UNITED STATES DEPARTMENT OF
INTERIOR; NATIONAL PARK
SERVICE; UNITED STATES
DEPARTMENT OF THE INTERIOR
SECRETARY, in his official capacity,
a/k/a Ken Salazar; NATIONAL PARK
SERVICE DIRECTOR, in her official
capacity, a/k/a Mary Bomar; NATIONAL
PARK SERVICE REGIONAL
DIRECTOR INTERMOUNTAIN
REGION, in his official capacity, a/k/a
Michael Snyder,

Respondents-Appellees.

------------------------------
INTERNATIONAL SNOWMOBILE
 MANUFACTURER’S ASSOCIATION,
INC.; AMERICAN COUNCIL OF
SNOWMOBILE ASSOCIATIONS; BLUE
RIBBON COALITION, INC.; TERI
MANNING, individually,

Intervenors-Appellees,

NATIONAL PARKS CONSERVATION
ASSOCIATION,

Intervenor-Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 07-cv-00319-CAB)

Robert D. Rosenbaum (Holly E. Sterrett and Ingo W. Sprie, Jr. with him on the
briefs), Arnold & Porter LLP, Denver, Colorado, for Intervenor-Appellant
National Parks Conservation Association.

James Kaste, Senior Assistant Attorney General (Jay Jerde, Deputy Attorney
General with him on the brief), Cheyenne, Wyoming, for Petitioner-Appellee
State of Wyoming.

Bryan A. Skoric, Park County Attorney, and James F. Davis, Deputy Park County
Attorney, Cody, Wyoming, for Petitioner-Appellee Park County Commissioners.

William P. Horn, Birch Horton Bittner & Cherot, PC, Washington, D.C., and
Harriet M. Hageman and Kara Brighton, Hageman & Brighton, Cheyenne,
Wyoming, for Intervenors-Appellees International Snowmobile Manufacturer’s
Association, American Council of Snowmobile Associations, Blue Ribbon
Coalition, Inc. and Teri Manning.

Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.

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GORSUCH, Circuit Judge.

This is the latest installment in a long series of cases seeking to resolve the

fate of snowmobiles in Yellowstone National Park. Our particular case began in

district court in Wyoming, when the State of Wyoming and allied snowmobile

enthusiasts challenged a 2007 National Park Service rule on the basis that it

unduly restricted access to the Park. Before the Wyoming district court could

rule, however, another district court in Washington, D.C. invalidated the 2007

regulation, though it did so on the basis that the regulation was too easy, not too

tough, on snowmobile access. As the Wyoming district court saw it, the D.C.

decision answered one question—what to do about the 2007 rule—but posed

another: what rules of the road should govern access to the Park until the Park

Service could issue a new regulation in response to the D.C. district court’s

decision? Perceiving an unfilled regulatory gap and a resulting uncertainty

among the parties and public, the Wyoming district court issued an interim

remedial order allowing 720 snowmobiles to enter Yellowstone daily until the

Park Service could craft a new rule of its own.

When this appeal came to us, then, it was a dispute only over whether the

Wyoming district court had the power to order its interim remedy. With winter

fast approaching, we afforded the litigants the first available opportunity to argue

this question to us. But time waits for no one, and in the brief period since we

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heard oral argument, the topography of this case changed yet again, when the

Park Service promulgated a new regulation for this winter season. It now makes

no difference whether or not the Wyoming district court had the power to issue

the interim relief as it did. Either way, the Park Service’s new regulation, not the

court’s order, will govern snowmobile access in Yellowstone. Although

interesting academic questions about the district court’s now-supplanted order

may remain, under Article III of our Constitution federal courts may answer only

questions whose resolution will have an actual effect in the real world. Because

no such questions remain in this case, we dismiss this appeal as moot, vacate the

judgment of the district court, and remand with instructions to dismiss the case

for lack of subject matter jurisdiction.

I

Over the last three decades, the question of snowmobiling in Yellowstone

National Park 1 has inspired a great many regulatory initiatives and lawsuits filling

volumes in the federal register and reports. It is virtually impossible to

understand the narrow and very particular dispute currently before us without at

least some general appreciation of this background.

1
All of the rules we discuss here also set snowmobile use policies for
Grand Teton National Park and the John D. Rockefeller, Jr., Memorial Parkway,
both located in Wyoming south of Yellowstone National Park. Following the
parties’ lead, we refer throughout this opinion only to Yellowstone and the
snowmobile limits specific to that park, keeping in mind that the rules affect all
three parks.

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 That takes us back to 1974. That year, in response to an executive order by

President Nixon directing the Secretary of Interior to establish policies for off-

road vehicles on public lands, Executive Order No. 11644, 37 Fed. Reg. 2877

(Feb. 8, 1972), the National Park Service adopted a default rule for all national

parks: the “use of snowmobiles is prohibited, except on designated routes.” 36

C.F.R. § 2.18(c) (2009), earlier version codified at 36 C.F.R. § 2.34(c) (1974).

Under this default rule—sometimes called the “closed unless opened” rule—the

Park Service must promulgate a special regulation designating particular routes in

a particular national park open to snowmobiles; absent such a rule, no

snowmobiles are allowed.

For many years, a special regulation designated routes open to snowmobiles

in Yellowstone and didn’t limit how many snowmobiles could enter the park. See

36 C.F.R. § 7.13(l)(2) (2000). But, after a challenge to this policy brought in a

Washington, D.C. district court by snowmobiling opponents, and a resulting

settlement, the Park Service adopted a rule in 2001 aimed at effecting a complete

phase-out of snowmobiles in the Park after the 2003-2004 winter season. 66 Fed.

Reg. 7260 (Jan. 22, 2001).

Rather than resolving the matter, though, this proved only the beginning of

a long legal battle, one waged in two district courts separated by half a continent

but sharing a common grant of jurisdiction. See 28 U.S.C. § 1391(e). A suit

challenging the 2001 rule, this time brought in Wyoming district court by

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snowmobiling proponents, ended in another settlement and another new rule in

2003. This rule took a very different course than the 2001 rule, promising to

allow 950 snowmobiles into the Park daily. 68 Fed. Reg. 69268 (Dec. 11, 2003).

The 2003 rule itself soon drew a legal challenge, now brought in the D.C.

district court by snowmobiling opponents. At the end of this lawsuit, the D.C.

court invalidated the 2003 rule and reinstated the 2001 rule. The Fund for

Animals v. Norton, 294 F. Supp. 2d 92, 115 (D.D.C. 2003). All this did, however,

was prod the plaintiffs from the earlier Wyoming action into reviving their

challenge to the 2001 rule in Wyoming, a challenge that they eventually won and

that resulted in the rule’s invalidation. Int’l Snowmobile Mfrs. Ass’n v. Norton,

340 F. Supp. 2d 1249, 1266 (D. Wyo. 2004).

In the wake of all this, the Park Service adopted a new rule in 2004 to

govern snowmobile use in Yellowstone until it could complete new environmental

impact studies and put in place (what it hoped might be) a more permanent

snowmobile policy. The 2004 rule designated certain routes as open to

snowmobiles and authorized up to 720 snowmobiles daily in the park. 69 Fed.

Reg. 65348 (Nov. 10, 2004). The 2004 rule, however, contained sunset clauses

providing that its snowmobile authorization and route designations would

terminate after the 2006-2007 winter season. Id. at 65360-61. Unlike its

predecessors, this temporary 2004 rule survived both a challenge in D.C. brought

by snowmobile opponents and a challenge in Wyoming brought by snowmobile

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proponents. See The Fund for Animals v. Norton, 390 F. Supp. 2d 12 (D.D.C.

2005) (rejecting a challenge to the 2004 rule brought as a motion to enforce the

order invalidating the 2003 rule and holding that it must be brought as a new

suit); Wyo. Lodging & Rest. Ass’n v. U.S. Dep’t of the Interior, 398 F. Supp. 2d

1197 (D. Wyo. 2005) (upholding 2004 rule against challenges under National

Environmental Policy Act and Administrative Procedure Act).

The 2004 rule, however, just suspended rather than resolved the fight.

After the 2004 rule expired by its own terms, the Park Service introduced in 2007

what it intended to be a permanent rule. The 2007 rule designated certain routes

as open to snowmobiles and allowed 540 snowmobiles in the park daily. 72 Fed.

Reg. 70781, 70797-98 (Dec. 13, 2007). By now perhaps unsurprisingly, this new

rule drew near-simultaneous challenges from different directions in more ways

than one. In the D.C. district court, the Greater Yellowstone Coalition and the

National Parks Conservation Association (the “Conservation Association”), a

private conservation group, challenged the 2007 rule on the ground that it allowed

too many snowmobiles. Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp.

2d 183, 186 (D.D.C. 2008). Meanwhile, a group of petitioners comprising the

State of Wyoming and the Park County Board of County Commissioners, together

with intervenors, the International Snowmobile Manufacturers Association, the

American Council of Snowmobile Associations, the Blue Ribbon Coalition, and

Teri Manning (collectively, the “petitioners”), challenged the rule in Wyoming

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district court under the Administrative Procedure Act (“APA”), alleging that it

permitted too few snowmobiles.

To this point, the Park Service had seemingly sought to pursue a strategy of

seeking to please everyone all the time, settling each legal challenge as it came

rather than litigating any through appeal for a definitive resolution of the matter.

This left the Park Service betwixt and between often conflicting sets of guidance

from two different district courts with apparently different visions of the

governing law. Seeking to avoid repeating that result, this time the Park Service

filed contingent motions in both the D.C. and Wyoming district courts, asking

each, as a matter of comity, to transfer its case to the other court. Each district

court, however, refused this request, held onto its own case, and sought to

proceed toward judgment. The results will hardly surprise, but they form the

immediate backdrop of this appeal.

The D.C. district court managed to rule first, declaring the 2007 rule

arbitrary and capricious, vacating it, and remanding it to the Park Service for

further proceedings. In the D.C. court’s view, once again the rule permitted more

snowmobiles than the law allowed. Greater Yellowstone Coal., 577 F. Supp. 2d

at 210. At the same time, the D.C. court declined to specify whether and what

snowmobiling should take place in Yellowstone until the Park Service could

prepare a new rule. The Park Service declined to appeal the D.C. district court’s

vacatur of its 2007 rule and so began work on a new rule.

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 Meanwhile, the Wyoming district court lamented that the D.C. court,

“sitting 2,000 miles away from the actual subject of this litigation[,] feels

compelled to hand down a ruling,” despite the Wyoming court’s concurrent

jurisdiction over the Park Service’s Yellowstone rules. D. Ct. Op. at 7. It also

expressed the view that it would have upheld the 2007 rule. At the same time, the

Wyoming court declined to issue such a ruling, explaining that “although this

Court may disagree with the D.C. District Court,” it did not wish to do anything

that might “disturb the order that has already been laid down by” a court of

concurrent jurisdiction. Id. at 11.

Still, in the Wyoming court’s view, the D.C. court’s ruling did leave one

question unresolved: with the Park Service’s 2007 rule now vacated, what should

happen in Yellowstone until the agency could prepare a new rule? The Wyoming

court believed that a regulatory void existed on this question, and that filling it

would resolve a live and important question without trenching on the D.C. court’s

vacatur of the 2007 rule. So, as a stop-gap measure, the Wyoming district court

held that the last valid rule should remain in effect until the Park Service could

promulgate a new one. But, of course, the last valid rule was the 2004 rule, and

that rule’s snowmobile route designations had expired the year before, leaving no

“affirmative authorization” for snowmobile use in Yellowstone. So, in the district

court’s view, filling the perceived void with the 2004 rule only begat another

void. In order to remedy this, and thereby “provide businesses and tourists with

-9-
the certainty that is needed in this confusing litigation,” id. at 14, the Wyoming

court decided “to reinstate the 2004 temporary rule without the sunset provision,”

id., “until such time as [the Park Service] can promulgate an acceptable rule to

take its place,” id. at 21.

It is only this ruling—the first in all this sequence in either Washington or

Wyoming—that has ever reached an appellate court. And it does so with only the

Conservation Association contesting it, the Park Service having elected once

again not to appeal. For its part, the Conservation Association urges us to hold

that the D.C. district court’s decision vacating the 2007 rule rendered the

Wyoming case moot and thus deprived the Wyoming district court of subject

matter jurisdiction to issue its order reinstating the 2004 rule without its sunset

provisions. Although the Wyoming district court granted the Conservation

Association’s motion to intervene for the purpose of arguing that the case was

moot, D. Ct. Op. at 6, 21, its opinion didn’t discuss the argument. The question

thus comes to us on a clean slate.

II

Article III authorizes the federal courts to decide only “Cases” and

“Controversies.” U.S. Const. art. III, § 2. Mootness doctrine exists to help give

meaning to this command by requiring us to ensure that we offer opinions only

when doing so “will have some effect in the real world.” 13B Wright, Miller &

Cooper, Federal Practice and Procedure § 3533.1, at 751 (3d ed. 2008). This

- 10 -
restriction on our charter pertains throughout the life of the case. So even if a

lawsuit involved a live dispute when the matter was before the district court,

should events overtake the case on appeal such that, before the final moment of

appellate disposition, the complaining party winds up with “all the relief the

federal court could have given him,” Hayes v. Evans, 70 F.3d 85, 86 (10th Cir.

1995), we will say that the suit has become moot and beyond the power of the

federal courts to adjudicate. This holds true even if all the parties before us still

wish us to render an opinion to satisfy their demand for vindication or curiosity

about who’s in the right and who’s in the wrong. Our job is to decide cases that

matter in the real world, not those that don’t. Mootness doctrine, and our

consequent inability to render judgment on nice hypothetical or advisory

questions, supplies a significant portion of what distinguishes the role of the

federal judge from that of the advisor or academic in our constitutional order. See

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Wirsching v.

Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004).

The Conservation Association argues that the D.C. district court’s

invalidation of the 2007 rule mooted the Wyoming petitioners’ challenge to that

same regulation. In the Wyoming lawsuit, the primary relief the petitioners

sought was the invalidation of the 2007 rule on the basis that it allowed too few

snowmobiles. Admittedly, the D.C. district court invalidated the rule on different

grounds, finding that the 2007 rule permitted too many, not too few,

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snowmobiles. But, the Conservation Association argues, the fact remains that the

D.C. court invalidated the 2007 rule, and when it did so there was no live

controversy left for the Wyoming district court to resolve.

The Wyoming petitioners dispute this conclusion in at least two ways.

First, they point out that the D.C. district court’s ruling is currently on appeal

before the U.S. Court of Appeals for the District of Columbia Circuit, and so it’s

not yet irrevocably clear whether the 2007 rule will stand or fall. It may be that

the prospect of reversal by the D.C. Circuit is remote, given that the D.C. decision

was appealed only by private intervenors and not by the Park Service. See N.C.

Fisheries Ass’n v. Gutierrez, 550 F.3d 16, 19 (D.C. Cir. 2008); Trout Unlimited v.

U.S. Dep’t of Agric., 441 F.3d 1214 (10th Cir. 2006). But even so, they submit,

their dispute hasn’t become totally vaporous—at least not yet. Second,

petitioners emphasize that the D.C. decision didn’t give them all the relief they

sought from the Wyoming court because, in addition to seeking the invalidation

of the 2007 rule, they asked the Wyoming court to reinstate the 2004 rule’s 720-

snowmobile limit as interim relief until such time as the Park Service could turn

out another new rule. Nothing in the D.C. case, they submit, purports to address

the question of interim relief and so at least this aspect of their Wyoming case is

untouched by anything that has happened or might happen in the D.C. lawsuit.

Beyond this knot of mootness questions the parties visit upon us lie still

other loose ends they haven’t addressed. For example, what about the 2004 rule’s

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sunset provisions? Arguably at least, the Wyoming district court’s reinstatement

of the 2004 rule without its sunset provisions may be the functional equivalent of

invalidating those provisions—yet, the petitioners did not challenge them in their

petitions for review, and it is an interesting question whether a district court may

set aside agency action not named in a petition for review. 2 Also, what of the

default rule prohibiting snowmobiles absent a valid Park Service regulation

specifically authorizing them? Given the sunset provisions in the 2004

regulation, the default rule arguably might be the last valid regulation in effect.

Yet, the Wyoming district court did not appear to consider this possibility.

Instead, it proceeded on the belief that the D.C. district court’s invalidation of the

2007 rule left a regulatory void and considerable uncertainty about whether and

how many snowmobiles would be permitted in Yellowstone. But the default rule

has always remained in place and it expressly forbids snowmobiles in national

parks when there exists no other special regulation permitting them. The district

court didn’t explain why the default rule failed to fill the regulatory void it

2
See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th
Cir. 1994) (“Reviews of agency action in the district courts must be processed as
appeals. In such circumstances the district court should govern itself by referring
to the Federal Rules of Appellate Procedure.”); Fed. R. App. P. 15(a)(2)(C)
(stating that petition for review to circuit court must “specify the order or part
thereof to be reviewed”); City of Benton v. Nuclear Regulatory Comm’n, 136 F.3d
824, 826 (D.C. Cir. 1998) (dismissing for lack of jurisdiction petition for review
that failed to name order to be challenged); Gottesman v. INS, 33 F.3d 383, 387-
88 (4th Cir. 1994) (same).

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perceived, let alone purport to adjudicate any challenge to the default regulation

before effectively undoing its dictates.

These examples only begin to describe the questions lurking here. The

parties also do not address the question whether comity may have required the

Wyoming district court to refrain from entering a remedy after it chose to defer to

the D.C. district court on the question whether to invalidate the 2007 rule.

Neither do they address whether preclusion, not mootness, may be another, and

perhaps more appropriate, way of describing the D.C. decision’s effect on the

Wyoming proceedings. See 13B Wright, Miller & Cooper, supra, § 3533.2.1, at

827-28. And because “an intervenor who lacks standing cannot pursue an appeal

if the original parties choose not to,” San Juan County, Utah v. United States, 503

F.3d 1163, 1174 (10th Cir. 2007), there may also be some question whether the

Conservation Association has a sufficient legal interest remaining in this case to

appeal the district court’s decision when the Park Service has elected not to do so.

Finally, even on the question the parties do present to us—whether a court’s

invalidation of a regulation, with an appeal pending in that case, renders other

challenges to that regulation moot—each side (accurately) accuses the other of

citing no authority to have dealt with an analogous situation. 3

3
See Ans. Br. at 13-14 (“[The Conservation Association] has failed to
identify a single analogous case where the jurisdiction of one district court was
terminated by a second court’s invalidation of the agency action at issue.”); Reply
Br. at 2 (“But [the petitioners] offer not a single case that actually stands for the
(continued...)

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 III

Though by now this case has begun to resemble a procedural maze, a recent

event has cut for us a clear path through to an obvious and inevitable end. On

November 20, 2009, the Park Service promulgated a new temporary rule. Under

that rule, 318 snowmobiles are permitted in Yellowstone on a daily basis through

the 2010-2011 winter season. 74 Fed. Reg. 60159, 60160 (Nov. 20, 2009). 4 What

happens after that, the Park Service says, will be left for future rules to sort out.

How does this development affect us? By its own terms, the Wyoming

district court’s interim relief decision at issue in this appeal ordered the Park

Service to reinstate the 2004 rule only “until such time as it can promulgate an

acceptable rule to take its place.” D. Ct. Op. at 21. With the Park Service’s

promulgation of its new rule, then, the Wyoming district court’s order expired by

its own terms. Put differently, even if this case wasn’t moot before, it surely is

now. And because that fact is enough to decide the case before us, we

needn’t—indeed, can’t—try to untangle the many other difficult and complex

questions posed to us by the parties. As Chief Justice Roberts has succinctly put

our point, “if it is not necessary to decide more, it is necessary not to decide

3
(...continued)
proposition that, without more, an appeal from an order vacating a regulation
precludes the order from mooting other claims challenging the same regulation.”).
4
The Park Service also adopted a separate rule establishing permanent
snowmobile policies for Grand Teton National Park and the John D. Rockefeller,
Jr., Memorial Parkway. 74 Fed. Reg. 60183 (Nov. 20, 2009).

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more.” PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,

concurring in part and concurring in the judgment).

How exactly is this case mooted by the Park Service’s new regulation? In

this appeal, the Conservation Association wished for us to declare the district

court without authority to dictate the number of snowmobiles that might enter

Yellowstone this winter. By its terms, however, the district court’s order has

expired and the Park Service’s new regulation, not the district court’s order,

promises to govern snowmobile access this winter season. In other words, we

could give the Conservation Association no more relief from the district court’s

order than the intervening new Park Service regulation already has. The

Conservation Association itself acknowledges and readily admits all this. See

NPCA Opp’n to Mot. for Limited Remand 9-10. Moreover, because the new Park

Service rule also supersedes its 2007 rule, it is now beyond cavil, even assuming

it wasn’t before, that the petitioners’ underlying challenge to that rule is also

moot. As our court has previously explained, “[b]y eliminating the issues upon

which this case is based, [the agency’s] adoption of the new rule has rendered the

appeal moot.” Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir.

2005). Any ruling on the validity of the now-supplanted and ineffective district

court order or 2007 rule could only “constitute a textbook example of advising

what the law would be upon a hypothetical state of facts rather than upon an

actual case or controversy as required by Article III of the Constitution.” Id. at

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1212-13 (internal quotation marks omitted). We would be issuing a ruling that

would have no effect in the world we now inhabit but would serve only to satisfy

the curiosity of the litigants about a world that once was and is no more.

The petitioners contest this. On their reading, the district court’s order

purports to govern the terms of snowmobile access in Yellowstone until such time

as the Park Service promulgates a permanent rule—that is, one without sunset

provisions or time limits. The Park Service’s new regulation, meanwhile,

purports to govern only this coming winter season and the next. In the

petitioners’ view, the Park Service thus has violated the district court’s order by

adopting a “temporary” rule to replace the 2004 rule, and so they ask us to

remand this case back to the district court for proceedings to enjoin the Park

Service from administering its new temporary rule.

We think this an unreasonable reading of the district court’s order, one

without support in the order’s language, and one in tension with fundamental

principles of administrative law. The district court’s opinion simply doesn’t say,

or even suggest, that the Park Service must promulgate a “permanent” rule before

its order expires. Instead, it merely says that its order expires when the Park

Service promulgates an “acceptable” rule. And the district court’s opinion makes

clear that an “acceptable” rule means no more than one that is “in compliance

with the D.C. District Court’s order,” D. Ct. Op. at 12, which of course did not

require the Park Service to adopt a permanent replacement rule, see Greater

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Yellowstone Coal., 577 F. Supp. 2d at 210. The Wyoming district court was

adamant, moreover, that it intended to do nothing that would “disturb,” “amend,

modify, or revoke” the order of the D.C. district court. D. Ct. Op. at 11 (internal

quotation marks omitted). It is unfathomable to think the Wyoming court

nonetheless would have done just that by attempting to dictate the kind of rule the

Park Service must produce.

Rather, it’s clear that the Wyoming court’s actions were deliberately

crafted to avoid conflict with the D.C. proceedings, and sought only to fill a

perceived temporary regulatory void left by that decision—namely, what policy

would govern snowmobiles in Yellowstone until the Park Service could adopt a

new rule. The district court’s driving and repeatedly expressed concern was that

there be some regulatory “certainty” about the status of snowmobiles in

Yellowstone during the then-upcoming winter season. Id. at 14-15. As we’ve

explained, such certainty may have already existed in the form of the default rule

and thus the void the district court perceived was perhaps more illusory than real.

But none of this diminishes the fact that the district court’s opinion sought only to

fill a perceived regulatory gap and evinced no intention to control what the rule

must be after the Park Service has had an opportunity to go through the APA

procedures and adopt its own rule.

Further confirming our understanding of the district court’s order are basic

principles of administrative law. To set aside an agency action—such as the

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choice to issue a temporary rather than a permanent rule—a court must first find

the action “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); see also FCC v. Fox Television

Stations, Inc., 129 S. Ct. 1800, 1810 (2009) (stating that the APA “sets forth the

full extent of judicial authority to review executive agency action for procedural

correctness”). After all, “flexibility in reconsidering and reforming of policy,”

including the opportunity to choose between temporary and permanent

rulemaking, is “one of the signal attributes of the administrative process,” NLRB

v. Savair Mfg. Co., 414 U.S. 270, 289 (1973) (White, J., dissenting) (quoting City

of Chicago v. Fed. Power Comm’n, 385 F.2d 629, 637 (D.C. Cir. 1967)), and

courts will not lightly interfere with it. See NLRB v. Bell Aerospace Co., 416

U.S. 267, 294 (1974). Nothing in the Wyoming district court’s order, of course,

purported to find that the Park Service couldn’t make use of temporary

snowmobile rules without violating the law; indeed, out of deference to the D.C.

decision, the Wyoming district court expressly declined to make any finding that

the Park Service’s rules either violated or conformed with the APA. To read the

Wyoming court’s order as petitioners do, then, we would have to make the

incredible assumption that the Wyoming district court deliberately sought to

foreclose the use of temporary rules without ever first making the necessary

finding that their use is legally impermissible.

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 Fortunately, as we’ve explained, there’s no reason to think the district court

did any such thing. Every indication before us leads to the unremarkable

conclusion that the court narrowly tailored its order to fill a perceived regulatory

gap, providing authorization for snowmobiles in Yellowstone only until the Park

Service acted. Now that the Park Service has acted, by its terms the Wyoming

court’s order has expired and any challenge to either that order or the supplanted

2007 rule is moot.

IV

When a case becomes moot while on appeal, our general practice is to

vacate the district court judgment and remand with instructions to dismiss the

case for lack of jurisdiction. See Wyoming, 414 F.3d at 1213. Some exceptions

do exist. Vacatur can be an inappropriate remedy, for example, when the actions

of a nonprevailing party are responsible for rendering the dispute moot. See id.

In such cases, courts sometimes worry that an unsuccessful party might have

altered its behavior in order to moot an appeal and thereby vacate an unfavorable

district court judgment—essentially manipulating the jurisdiction of the federal

courts to “obtain the relief it was not able to win” in court. Id. Here, however,

there is no suggestion before us that the Park Service, by adopting a new rule, has

mooted the case for any untoward purpose. Far from it. The Park Service did not

even seek to appeal the Wyoming district court’s ruling, and since then has

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simply sought to do its job by replacing the 2007 rule the D.C. district court

vacated with some new regulatory direction.

Accordingly, we follow our usual course, and dismiss this appeal as moot,

vacate the judgment of the district court, and remand the case to the district court

with instructions to dismiss for lack of subject matter jurisdiction. We deny the

petitioners’ motion for remand as itself moot in light of these holdings. We grant

the Conservation Association’s motion to file a supplemental appendix.

So ordered.

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