Battle Mountain Band of the Te-Moak Tribe of Western Shoshone Indians v. United States Bureau of Land Management

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                              NOT FOR PUBLICATION                          FILED
                       UNITED STATES COURT OF APPEALS                       FEB 17 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

 BATTLE MOUNTAIN BAND OF THE                        No.   16-16016
 TE-MOAK TRIBE OF WESTERN
 SHOSHONE INDIANS,                                  D.C. No.
                                                    3:16-cv-00268-LRH-WGC
                    Plaintiff-Appellant,

   v.                                               ORDER*

 UNITED STATES BUREAU OF LAND
 MANAGEMENT; JILL C. SILVEY, in
 official capacity as Bureau of Land
 Management Elko District Manager,

                    Defendants-Appellees,

 CARLIN RESOURCES, LLC,

            Intervenor-Defendant-
            Appellee.

                      Appeal from the United States District Court
                               for the District of Nevada
                       Larry R. Hicks, District Judge, Presiding

                        Argued and Submitted February 13, 2017
                               San Francisco, California

Before: CANBY, SILER,** and HURWITZ, Circuit Judges.

        *
            This order is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
        **
                The Honorable Eugene E. Siler, United States Circuit Judge for the U.S.
      The Battle Mountain Band of the Te-Moak Tribe of Western Shoshone

Indians (“the Band”) moved for a preliminary injunction in the district court to

prevent the Bureau of Land Management (“BLM”) “from issuing any authorizations

or notices to proceed” relating to the construction of a power line authorized in a

BLM Record of Decision, or “allowing or permitting any ground-disturbing

activities related to the Power Line,” including “all earth work or work in preparation

of or construction of foundations for power poles or other structures.” The district

court denied the motion for a preliminary injunction and the Band appealed. Both

the district court and this Court denied the Band’s motions for an injunction pending

appeal, and the parties agree that construction of the power line has now been

completed.

      In light of the completion of construction of the power line, we dismiss this

appeal from the denial of the preliminary injunction as moot. In Def. of Animals v.

U.S. Dep’t of Interior, 648 F.3d 1012, 1013-14 (9th Cir. 2011) (per curiam). The

underlying action, however, is not moot, and our dismissal is without prejudice to

the Band raising in the district court any applications for interlocutory relief arising

out of the operation and use of the power line, and is not intended to affect the ability

of the district court to order any appropriate relief on final judgment.



Court of Appeals for the Sixth Circuit, sitting by designation.

                                           2
This order constitutes the mandate of this Court.

APPEAL DISMISSED.




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