NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WILDERNESS WATCH and FRIENDS No. 13-35610
OF THE CLEARWATER,
D.C. No. 9:12-cv-00102-DWM
Plaintiffs - Appellants,
v. MEMORANDUM*
JULIE KING; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Argued and Submitted January 22, 2015
Billings, Montana
Before: THOMAS, Chief Judge, and HAWKINS and CHRISTEN, Circuit Judges.
This appeal challenges the adverse grant of summary judgment on claims
brought by environmental advocacy organizations Wilderness Watch and Friends of
the Clearwater (collectively “Watch”) that the U.S. Forest Service (“USFS”) violated
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the Wilderness Act, National Environmental Policy Act, and National Forest
Management Act when it authorized two helicopter flights to deliver replacement
parts to the Fred Burr High Lake dam located within the Selway-Bitterroot Wilderness
Area (“Wilderness Area”). We dismiss for lack of jurisdiction because the case is
moot, and the “capable of repetition yet evading review” exception does not apply.1
Before exercising jurisdiction, a court must ensure that the case is not moot.
See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000), cert.
denied, 532 U.S. 905 (2001). Thus, “an actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S.
395, 401 (1975). “Where the activities sought to be enjoined have already occurred,
and the appellate courts cannot undo what has already been done, the action is moot.”
Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir. 1989)
(quoting Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978)).
Watch’s prayer for injunctive relief is moot because the challenged flight already
occurred, and we cannot undo what has already been done.
A court may invoke jurisdiction over a claim for declaratory relief even if a case
is moot with respect to injunctive relief. Feldman v. Bomar, 518 F.3d 637, 642 (9th
Cir. 2008) (citing Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121–22 (1974)).
1
We also grant USFS’ unopposed motion to supplement the record.
2
Super Tire reasoned that such a claim remains live if a challenged policy is fixed and
definite, not contingent upon executive discretion, and by its continuing presence
casts a substantial adverse effect on the interests of the parties. 416 U.S. at 122–24.
As Watch does not challenge a fixed and definite policy, but rather a single fact-
dependent authorization involving USFS discretion, the prayer for declaratory relief
is also moot.
An otherwise moot action may still be subject to review under the “capable of
repetition, yet evading review” exception, which applies when both the duration of the
challenged action is too short to allow full litigation before it ceases, and there is a
reasonable expectation that the plaintiffs will be subjected to the same action again.
See Spencer v. Kemna, 523 U.S. 1, 17 (1998).
Watch does not demonstrate a reasonable expectation of repeat exposure to the
conduct it challenges for two reasons. First, USFS has only authorized flights to Fred
Burr dam twice since the Wilderness Act was enacted in 1964, and no future flights
to the dam are planned or envisioned. Second, the relevant statutes and regulations
do not prohibit helicopter flights altogether, but rather permit them in certain
circumstances, subject to case-by-case determination. See 16 U.S.C. §§ 1133(c),
1134(b); 36 C.F.R. § 293.13.
3
Given that each flight authorization involves individualized consideration of the
particular dam’s maintenance requirements, the viability of non-motorized
alternatives, and the project’s impact on wilderness, the recurrence of circumstances
similar to those surrounding this flight is a mere “speculative possibility [that] does
not constitute a ‘reasonable expectation.’” W. Coast Seafood Processors Ass’n v.
Natural Res. Def. Council, Inc., 643 F.3d 701, 705 (9th Cir. 2011) (citing Sze v. INS,
153 F.3d 1005, 1009 (9th Cir. 1998)).2
As a result, Watch’s challenge is moot, and the only relevant mootness
exception does not apply.
DISMISSED.
2
As Watch must satisfy both prongs of this exception, we need not evaluate
whether the challenge “evades review.”
4