Humane Society of the United States v. Kempthorne

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2008 Decided June 3, 2008

Nos. 06-5396 & 06-5397

THE HUMANE SOCIETY OF THE UNITED STATES ET AL.,
APPELLEES

v.

DIRK KEMPTHORNE ET AL.,
APPELLANTS

SAFARI CLUB INTERNATIONAL FOUNDATION AND
SAFARI CLUB INTERNATIONAL,
APPELLANTS

Appeals from the United States District Court
for the District of Columbia
(No. 06cv01279)

Ronald M. Spritzer, Attorney, United States Department of
Justice, argued the cause for the federal appellants. Andrew C.
Mergen and M. Alice Thurston, Attorneys, were on brief. R.
Craig Lawrence, Assistant United States Attorney, entered an
appearance.
Anna M. Seidman argued for Safari Club International and
Safari Club International Foundation. Douglas S. Burdin was on
brief.
 2

Sanne H. Knudsen argued for the appellees. Brian B.
O'Neill, Richard A. Duncan, and Jonathan R. Lovvorn, were on
brief. Patricia R. Lane entered an appearance.
Before: HENDERSON, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Dirk
Kempthorne, Secretary of the United States Department of the
Interior (Secretary), the Fish and Wildlife Service (FWS) of the
Department of the Interior (Interior) and H. Dale Hall, Director
of the FWS (collectively federal appellants), together with the
Safari Club International and Safari Club International
Foundation (collectively Safari Club), appeal the district court
judgment enjoining the FWS “from authorizing the lethal take
of any more gray wolves for depredation control purposes” by
the Wisconsin Department of Natural Resources (Wisconsin
DNR). Humane Soc’y of the United States v. Kempthorne,
CV06-1279, slip op. at 34 (Aug. 9, 2006); id. Order (Sept. 6,
2006). The Humane Society of the United States (Humane
Society) and other environmental organizations1 had sought the
injunction because, in their view, the gray wolf, as an
endangered species, could not be the object of a lethal
depredation control program under the Endangered Species Act
(ESA), 16 U.S.C. §§ 1531 et seq. The district court agreed.
While the appeal was pending, Interior removed the gray wolf
population located in the Western Great Lakes Region (which
includes Wisconsin) from the endangered species list. See Final
Rule Designating the Western Great Lakes Populations of Gray

1
The other organizations include the Animal Protection Institute,
Friends of Animals and Their Environment, Help Our Wolves Live,
the Indigenous Environmental Network, the Klamath Forest Alliance
and RESTORE: The North Woods.
 3

Wolves as a Distinct Population Segment; Removing the
Western Great Lakes Distinct Population Segment of the Gray
Wolf From the List of Endangered and Threatened Wildlife, 72
Fed. Reg. 6052 (Feb. 8, 2007). The parties agree that the
delisting moots the appeal. The federal appellants and the Safari
Club have moved to vacate the district court judgment and the
Humane Society opposes vacatur. For the reasons set forth
below, we grant the appellants’ motion and vacate the district
court judgment.
I.
The ESA protects species of fish and wildlife listed as
endangered or threatened by making it unlawful for any person
to “take any such species within the United States.” 16 U.S.C.
§ 1538(a)(1)(B).2 Nevertheless, section 10(a)(1)(A) of the ESA
authorizes the Secretary to “permit . . . any act otherwise
prohibited by section 1538 of this title for scientific purposes or
to enhance the propagation or survival of the affected species,
including, but not limited to, acts necessary for the
establishment and maintenance of experimental populations.”
16 U.S.C. § 1539(a)(1)(A).
Since 1978 the gray wolf has been listed as an endangered
species in 47 states.3 In recent years, the gray wolf population
in Wisconsin has exceeded the recovery goal, resulting in wolf
depredation of livestock and domestic animals. Set of Findings:
Wisconsin Department of Natural Resources Wolf Depredation
Permit (TE111360), 2-4 (Apr. 24, 2006). The FWS concluded

2
“The term ‘take’ means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.” 16 U.S.C. § 1532(19).
3
See Reclassification of the Gray Wolf in the United States and
Mexico, with Determination of Critical Habitat in Michigan and
Minnesota, 43 Fed. Reg. 9607 (March 9, 1978).
 4

that depredation endangers gray wolf recovery because “[i]f the
State or Federal government does not act, livestock owners
likely will act and their actions could lead to the indiscriminate
killing of wolves.” Id. at 2 (citation omitted). Accordingly, in
2003 the FWS, in conjunction with the Wisconsin DNR,
attempted to implement a depredation control program in
Wisconsin.
Pursuant to section 4(d) of the ESA—which applies only to
threatened species—the Secretary is authorized to promulgate
regulations “as he deems necessary and advisable to provide for
the conservation of such species.” 16 U.S.C. § 1533(d). In
2003, the depredation control program was established as one
such regulation.4 In the regulation, the FWS reclassified the
gray wolf in certain states (including Wisconsin) from
endangered to threatened and simultaneously promulgated a
section 4(d) rule to permit the taking of gray wolves in those
regions.5 Different environmental organizations challenged the
rule, however, and two federal district courts invalidated the
FWS’s reclassification of the gray wolf as threatened and,
accordingly, enjoined the depredation control programs. See
Defenders of Wildlife v. Sec’y, U.S. Dep’t of the Interior, 354 F.
Supp. 2d 1156 (D. Or. 2005); Nat’l Wildlife Fed’n v. Norton,
386 F. Supp. 2d 553 (D. Vt. 2005).
In February 2005, with the gray wolf having been returned
to endangered status, the Wisconsin DNR applied for a
depredation control permit pursuant to section 10(a)(1)(A) of the

4
See Final Rule to Reclassify and Remove the Gray Wolf from the
List of Endangered and Threatened Wildlife in Portions of the
Conterminous United States; Establishment of Two Special
Regulations for Threatened Gray Wolves, 68 Fed. Reg. 15,804, 15,868
(Apr. 1, 2003).
5
68 Fed. Reg. at 15,809-11, 15,868.
 5

ESA. In contrast to section 4(d), which permits the Secretary to
issue regulations allowing the taking of a threatened species as
the Secretary “deems necessary and advisable to provide for the
conservation of such species,” section 10(a)(1)(A) permits the
Secretary to issue regulations allowing the taking of an
endangered species “for scientific purposes or to enhance the
propagation or survival of the affected species” only.6 On April
1, 2005 the FWS issued a section 10 depredation control permit
to the Wisconsin DNR7 but the district court invalidated the
permit because the FWS had failed to provide for notice and
comment before issuing it. See Defenders of Wildlife v. Norton,
No. 05cv1573 (D.D.C. Sept. 13, 2005).
The Wisconsin DNR immediately reapplied for a section 10
permit8 and, following a public comment period, the FWS issued
a new section 10 permit on April 24, 2006. See Federal Fish and
Wildlife Permit, No. TE111380-0 (Apr. 24, 2006). The permit,
which was effective from April 24, 2006 until December 31,
2006, permitted the Wisconsin DNR to euthanize up to 43
wolves subject to several conditions, including that “[l]ethal
wolf control is preceded by verification that wolves were
involved in the depredation,” “depredation occurred on lawfully
present domestic animals, including livestock” and
“[d]epredation at the site is likely to continue in the immediate
future if the depredating wolf or wolves are not removed.” Id.

6
See ESA § 10(a)(1)(A), 16 U.S.C. § 1539(a)(1)(A).
7
See Authorization to Use Region 3 Endangered and Threatened
Species Permit to Carry Out the Following Activities Within the
State(s) of Wisconsin (Apr. 1, 2005) (authorizing the taking of up to
34 wolves).
8
See Notice of Receipt of Applications, 70 Fed. Reg. 54,401 (Sept.
14, 2005).
 6

The Humane Society sought preliminary injunctive relief in
the district court on July 25, 2006, claiming that section 10 of
the ESA does not authorize the FWS to issue a permit for a
lethal depredation control program for an endangered species.
Safari Club then moved to intervene as of right to defend the
legality of the permit,9 arguing that its members “hunt in
Wisconsin, frequently encounter wolves, . . . have witnessed
wolves on their properties, in close proximity to their families
and pets[,] . . . have also competed with wolves during hunting
expeditions[,] . . . have lost prey to aggressive wolves . . . [and]
have lost family pets and have witnessed the carnage of a wolf
attack on these highly valued animals.” Mot. to Intervene 5
(Aug. 1, 2006).
On August 9, 2006, the district court both granted Safari
Club’s motion to intervene and issued a preliminary injunction
prohibiting the FWS from authorizing the Wisconsin DNR to
engage in the lethal take of gray wolves for the purpose of
depredation control. See Humane Soc’y of the United States v.
Kempthorne, No. 06cv1279 (Aug. 9, 2006). The court
converted the preliminary injunction into a final judgment on the
merits on September 6, 2006 and the federal appellants and
Safari Club filed timely notices of appeal on November 1, 2006
and November 13, 2006, respectively. See Federal Rules of
Appellate Procedure 4(a)(1)(B), 4(a)(3).
On February 8, 2007, Interior promulgated its final rule
removing the gray wolf in the Western Great Lakes Region from

9
See Fed. R. Civ. P. 24(a)(2) (“On timely motion, the court must
permit anyone to intervene who . . . claims an interest relating to the
property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair
or impede the movant’s ability to protect its interest, unless existing
parties adequately represent that interest.”).
 7

the endangered and threatened species list.10 See 72 Fed. Reg.
6052. Because the gray wolf is no longer a protected species,
the ESA no longer prohibits the Wisconsin DNR from taking the
species. Accordingly, Safari Club moved to dismiss the appeal
as moot and to vacate the district court judgment on May 4,
2007 and the federal appellants likewise moved on May 11,
2007. The Humane Society agrees that the March 12, 2007
delisting mooted the appeal. See Appellees’ Br. 18.
II.
“When a civil case becomes moot pending appellate
adjudication, ‘[t]he established practice . . . in the federal system
. . . is to reverse or vacate the judgment below and remand with
a direction to dismiss.’” Arizonans for Official English v.
Arizona, 520 U.S. 43, 71 (1997) (quoting United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950)) (alterations in
Arizonans); see also United States v. Schaffer, 240 F.3d 35, 38
(D.C. Cir. 2001) (en banc) (per curiam) (“When a case becomes
moot on appeal, whether it be during initial review or in
connection with consideration of a petition for rehearing or
rehearing en banc, this court generally vacates the District
Court’s judgment, vacates any outstanding panel decisions, and
remands to the District Court with direction to dismiss.”).
“Vacatur ‘clears the path for future relitigation’ by eliminating
a judgment the loser was stopped from opposing on direct
review.” Arizonans, 520 U.S. at 71 (quoting Munsingwear, 340
U.S. at 40).
Both the federal appellants and Safari Club ask us to vacate
the district court’s judgment. The Humane Society opposes
vacatur, asserting that “vacatur should be not granted when ‘the

10
The Humane Society is challenging the delisting in a separate
district court proceeding. See Humane Soc’y of the United States v.
Kempthorne, No. 07cv0677 (D.D.C. filed Apr. 16, 2007).
 8

party seeking relief from the judgment below caused the
mootness by voluntary action.’” Appellees’ Br. 19 (quoting U.S.
Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 24
(1994)). Vacatur does not apply, according to the Humane
Society, because “[t]he mootness of this appeal is not
happenstance” but was instead caused by the FWS’s “timing of
both the issuance of the Section 10(a)(1)(A) permits and the
delisting decision.” Id. The Humane Society acknowledges that
the delisting of the gray wolf was proposed before the FWS
issued Wisconsin DNR’s section 10 permit but emphasizes that
Wisconsin DNR applied for the permit over six months before
the delisting proposal. Further, the FWS could reasonably
anticipate that that permit would be challenged in court, the
Humane Society maintains, and the delisting proposal was thus
an attempt to head off litigation. Additionally, “[b]oth the
Western Great Lakes Delisting Rule and the 2006 Permit were
handled out of the same FWS Regional Office in Fort Snelling,
Minnesota . . . [and] the principal author of the Western Great
Lakes Delisting Rule also authored the Wisconsin Memo, which
urged the issuance of a Section 10(a)(1)(A) permit to Wisconsin
in 2005.” Id. at 23.
The Humane Society’s argument is based on its
interpretation of the United States Supreme Court’s decision in
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18, 24 (1994). In Bancorp, “[t]he contested question [was]
whether courts should vacate where mootness results from a
settlement.” 513 U.S. at 23 (emphasis added). “[T]he
determination is an equitable one,” the Court explained, and
“[t]he principal condition to which we have looked is whether
the party seeking relief from the judgment below caused the
mootness by voluntary action.” Id. at 29, 24-25. It concluded
that “[w]here mootness results from settlement . . . the losing
party has voluntarily forfeited his legal remedy by the ordinary
processes of appeal or certiorari, thereby surrendering his claim
to the equitable remedy of vacatur.” Id. at 25. But it cautioned
 9

that “[t]his is not to say that vacatur can never be granted when
mootness is produced in that fashion.” Id. at 29 (emphases
added).
We have interpreted Bancorp narrowly. In National Black
Police Association v. District of Columbia,108 F.3d 346 (D.C.
Cir. 1997), the Police Association brought a First Amendment
challenge to the political campaign contribution limits imposed
by the District. The district court struck down the limits and
enjoined their implementation, id. at 348; while the District’s
appeal was pending, the District increased the contribution
limits, thus mooting the appeal, id. at 347. Although we noted
that Bancorp’s “voluntary action” exception might apply to
Governmental action we nonetheless vacated the district court
judgment:
The issue we face here is whether Bancorp’s
presumption against vacatur should apply where the
party seeking relief from the judgment below is the
government and the case has been mooted by passage of
new legislation. Clearly, the passage of new legislation
represents voluntary action, and thus on its face the
Bancorp presumption might seem to govern. We believe,
however, that application of the Bancorp presumption in
this context is not required by the Bancorp opinion’s
rationale and would be inappropriate, at least if there is
no evidence indicating that the legislation was enacted
in order to overturn an unfavorable precedent. The
rationale underlying the Bancorp presumption is that
litigants should not be able to manipulate the judicial
system by “roll[ing] the dice . . . in the district court”
and then “wash[ing] away” any “unfavorable outcome”
through use of settlement and vacatur. Bancorp, 513
U.S. at 27-29. The mere fact that a legislature has
enacted legislation that moots an appeal, without more,
provides no grounds for assuming that the legislature
 10

was motivated by such a manipulative purpose. The
legislature may act out of reasons totally independent of
the pending lawsuit, or because the lawsuit has
convinced it that the existing law is flawed. In American
Library Association v. Barr, 956 F.2d 1178 (D.C. Cir.
1992), we rejected the argument that vacatur was not
appropriate where a case had become moot on appeal
due to Congress’ passage of new legislation, arguing that
Congress’ action “to repair what may have been a
constitutionally defective statute . . . represents
responsible lawmaking, not manipulation of the judicial
process.” Id. at 1187.
Id. at 351-52 (emphasis added and citation omitted) (alterations
in Nat’l Black Police Ass’n).
We thus vacated the judgment although the District had
mooted the appeal by enacting new legislation. Analogizing to
Black Police Association, the FWS argues that the judgment
here should be vacated because the Government is an appellant
and it mooted the appeal by delisting the gray wolf. But the
Black Police Association opinion in dicta seems to distinguish
legislative from executive action:
Separation of powers concerns provide further reason to
exempt from Bancorp’s presumption against vacatur the
situation of a case which has become moot on appeal
due to passage of legislation. As is true of the District,
in most multi-branch governments defense of existing
laws falls to the executive whereas initiation of
legislation is the responsibility of the legislature.
Although the executive has the option of refusing to sign
legislation, so as to avoid mooting litigation, this option
is a hollow one if the executive believes both that the
new legislation would be beneficial and that the pending
challenge has no merit. To a degree, therefore, the
executive branch is in a position akin to a party who
 11

finds its case mooted on appeal by “happenstance,”
rather than events within its control. This argument
suggests that the Bancorp presumption against vacatur
might apply if the case has been rendered moot on
appeal by enactment or repeal of a regulation, even
though the courts accord the executive branch the same
presumption of legitimate motive as is given the
legislative branch. We need not reach this question,
however, and therefore express no views on the matter
other than to note the limits of our holding here that the
Bancorp presumption is usually inapplicable when
legislative action moots a case and the government seeks
vacatur.
Id. at 353 (emphasis added and citation omitted).
Relying on our language highlighted above, the Humane
Society maintains that the Black Police Association holding
supports its position because the FWS mooted the appeal by its
delisting decision. Central to the Humane Society’s argument,
however, is the premise that the voluntary action exception
applies to governmental action in the first place. And neither
Bancorp nor Black Police Association decided that threshold
issue. See Bancorp, 513 U.S. at 25 (holding that “[w]here
mootness results from settlement, . . . the losing party has
voluntarily forfeited his legal remedy by the ordinary processes
of appeal or certiorari, thereby surrendering his claim to the
equitable remedy of vacatur”); Black Police Ass’n, 108 F.3d at
351 (observing that while “the passage of new legislation
represents voluntary action, and thus on its face the Bancorp
presumption might seem to govern,” District was nonetheless
entitled to vacatur) (emphasis added).
Moreover, in American Family Life Assurance Co. of
Columbus v. FCC, 129 F.3d 625 (D.C. Cir. 1997)
(AFLAC)—issued less than six months after Black Police
Association—we suggested that the Bancorp exception may be
 12

limited to appeals mooted by settlement. In AFLAC, the
successor of a broadcast company that owned multiple television
stations petitioned for review of an FCC order. While review
was pending, the petitioner sold all of its interests in the
television stations, thus mooting its petition. The FCC argued
that its order should not be vacated because the petitioner
mooted the case through its “unilateral, voluntary action.” Id. at
630. We noted that “[t]he Commission’s first point
misinterprets [Bancorp] . . . [because] [t]he specific holding of
Bancorp, concerning as it does settlements, has no application
here.” Id. at 630 (emphasis added). We then analyzed the
“equities” of vacatur, rejecting the Commission’s argument that
it was “entirely ‘speculative’ that the Commission’s Order will
have any preclusive effects on petitioner in the future” and that
“the continuing precedential force of the Order remain[ed]
valuable to the public.” Id. at 630-31.
While the Black Police Association dicta and AFLAC’s
interpretation of Bancorp may not be seamlessly consistent,
neither squarely decided that Bancorp’s voluntary action
exception applies to “executive branch” action. We likewise
need not resolve the issue because any doubt about the federal
appellants’ entitlement to vacatur is removed by intervenor
Safari Club’s entitlement thereto. As noted earlier, Safari Club
intervened as of right and filed its own motion to dismiss the
appeal as moot and to vacate the district court’s judgment.
“Vacatur is in order when mootness occurs through
happenstance—circumstances not attributable to the
parties . . . .” Arizonans for Official English, 520 U.S. at 71; see
also Bancorp, 513 U.S. at 25 (“A party who seeks review of the
merits of an adverse ruling, but is frustrated by the vagaries of
circumstance, ought not in fairness be forced to acquiesce in the
judgment”); N. Cal. Power Agency v. Nuclear Regulatory
Comm’n, 393 F.3d 223, 225 (D.C. Cir. 2004) (“[I]f the party
who lost below did not cause the case to become moot, that is,
if happenstance or the actions of the prevailing party ended the
 13

controversy, vacatur remains the standard form of relief.”)
(citations omitted). Plainly, Safari Club did not moot the
appeal—the delisting decision was made by the FWS.
Moreover, “vacatur is an equitable remedy,” Columbian Rope
Co. v. West, 142 F.3d 1313, 1318 n.5 (D.C. Cir. 1998) (citing
Bancorp, 513 U.S. at 25), and here the equities favor vacatur.
This is “not a case in which a litigant is attempting to manipulate
the courts to obtain the relief it was not able to win in the
judicial system.” Wyoming v. U.S. Dep’t of Agric., 414 F.3d
1207, 1213 (10th Cir. 2005) (vacating district court judgment
mooted by promulgation of U.S. Forest Service regulation
because vacatur was sought by non-governmental intervenors).
And “because the party seeking appellate relief is not the party
responsible for mooting the case, the orderly operation of the
appellate system is not being frustrated.” Id.11 Accordingly, the
judgment of the district court is vacated.
So ordered.

11
The Humane Society contends that “permitting Safari Club,
which intervened as a defendant on behalf of the government, to seek
vacatur where the government could not, would open a serious
loophole in the rule of U.S. Bancorp for any case involving
intervenors.” Appellees’ Br. 25-26 (emphasis in original). Safari
Club, however, intervened as of right because its interest was not
adequately represented. See Fed. R. Civ. P. 24(a)(2).