Public Employees for Environmental Responsibility v. National Park Service

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PUBLIC EMPLOYEES FOR :
ENVIRONMENTAL :
RESPONSIBILITY, et al. :
Plaintiffs, : Civil Action No.: 19-3629 (RC)
:
v. : Re Document No.: 10, 11, 18,
: 20, 21, 25
:
NATIONAL PARK SERVICE, :
U.S. DEPARTMENT OF THE INTERIOR; :
MARGARET EVERSON, in her official :
capacity; and SCOTT DE LAVEGA, 1 :
in his official capacity. :
:
Defendants. :

MEMORANDUM OPINION

DENYING AS MOOT DEFENDANTS’ MOTION TO STAY PENDING RULEMAKING; DENYING AS
MOOT PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY; DENYING MOTION TO MODIFY
BRIEFING SCHEDULE; DENYING DEFENDANTS’ MOTION TO DISMISS, GRANTING PLAINTIFFS’
MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT; DENYING WITHOUT PREJUDICE
PLAINTIFFS’ MOTION TO COMPLETE OR SUPPLEMENT THE ADMINISTRATIVE RECORD

I. INTRODUCTION

Plaintiffs, a collection of non-profit environmental organizations and interested

individuals, bring this action against the National Park Service, the United States Department of

the Interior, the Director of the National Park Service, and the Secretary of the Interior,

challenging the National Park Service’s issuance of a policy memorandum concerning the use of

electric-assisted bicycles in National Parks under the Administrative Procedure Act (the “APA”),

1
Pursuant to Federal Rule of Civil Procedure 25(d), Ms. Everson is automatically
substituted for former Deputy Director Daniel P. Smith and former Deputy Director David Vela,
while Scott de la Vega, current acting Secretary of the Interior, is similarly substituted for former
Secretary of the Interior David Bernhardt.
5 U.S.C. §§ 701–06 (2012), and various other statutes. Plaintiffs seek declaratory and injunctive

relief. While this case was pending, the National Park Service undertook a rulemaking and

promulgated a Final Rule on the topic of electric bicycles, superseding the policy memorandum

that was the focus of Plaintiffs’ original complaint. Plaintiffs request leave to file a supplemental

complaint to incorporate new facts and allegations pertaining to the Final Rule. In the meantime,

Defendants have filed a motion to dismiss, contending that as a result of the promulgation of the

Final Rule this action is now constitutionally and prudentially moot. The Court grants Plaintiffs

leave to supplement their complaint, as it finds this request to be in the interest of judicial

economy, with a limited risk of undue delay or prejudice to Defendants. Furthermore, because

the Court retains the power to grant effective relief, it finds that Plaintiffs’ claims are not moot

and can proceed.

II. FACTUAL BACKGROUND

A. Regulation of Electric Bikes in the National Park System

Plaintiffs, who include Public Employees for Environmental Responsibility, Wilderness

Watch, the Environmental Action Committee of West Marin, the Marin Conservation League,

Save Our Seashore, Amy Meyer, Phyllis Koenig, and David Perel (collectively, “Plaintiffs”)

have brought this action against the National Park Service (“NPS”), the United States

Department of the Interior, and in their official capacities acting Director of the National Park

Margaret Everson and acting Secretary of the Interior Scott de la Vega (collectively,

“Defendants”), challenging the NPS’s policy regarding the use of electric-assisted bicycles (“e-

bikes”) in the National Park system. Compl. ¶¶ 1, 9–18, ECF No. 1.

On August 29, 2019, the Secretary of the Interior signed Secretarial Order 3376 entitled

“Increasing Recreational Opportunities through the Use of Electric Bikes” (“Secretarial Order”)

2
to address the use of e-bikes on lands managed by the United States Department of the Interior.

Compl. ¶ 32; see also generally Secretarial Order, ECF No. 10-2. The order purportedly sought

to clarify any public uncertainty as to whether e-bikes “should be treated in the same manner as

other types of bicycles or alternatively, [be] considered to be motor vehicles.” Secretarial Order

at AR-0915. To that end, the Secretarial Order defined what constituted an “e-bike” and set out

a policy that vehicles that fall within the definition “shall be allowed where other types of

bicycles are allowed” and “shall not be allowed where other types of bicycles are prohibited.”

Compl. ¶ 32; see also Secretarial Order at AR-916. Essentially, e-bikes were to be treated in the

same manner as traditional, non-electric bicycles.

The Secretarial Order also directed the NPS to develop a proposed rule in accord with the

order, that revised current NPS regulations to add a definition for e-bikes and to “expressly

exempt all e-bikes as defined under the Order from the definition of motor vehicles.” Compl.

¶ 32; see also Secretarial Order at AR-916.

The very next day, Deputy NPS Director Daniel P. Smith issued a policy memorandum

(“the Smith Directive”), under the authority of the Director of the NPS addressing the use of e-

bikes on NPS lands. Compl. ¶ 34; see generally Smith Directive, ECF No. 10-3. Deputy

Director Smith issued the policy while “exercising the authority of the [NPS] Director.” Smith

Directive at 1. The Smith Directive’s stated intent was to “allow e-bikes to be used for

transportation and recreation in a similar manner to traditional bicycles.” Smith Directive at 3;

see also Compl. ¶ 34. To this end, the directive parroted language from the Secretarial Order,

stating that “e-bikes are allowed where traditional bicycles are allowed” but “are not allowed

where traditional bicycles are prohibited, including wilderness areas.” Smith Directive at 2.

Park superintendents were “directed to manage e-bikes consistent with this Memorandum.” Id.

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at 4. The directive also required park superintendents to update their park compendium to

include a definition of e-bike and the statement that “E-bikes are allowed in [insert name of park]

where traditional bicycles are allowed,” among other updates. Id. The directive noted that these

updates “must” be taken “as soon as possible” and no later than 30 days after either the issuance

of the Smith Directive or the introduction of e-bikes to the park, whichever was later. Id.

Over a year later, on November 2, 2020, after undergoing notice and comment pursuant

to the APA, the NPS published in the Federal Register its final e-bikes rule. See Defs.’ Mot.

Dismiss Ex. 1 (“Final Rule”), ECF No. 24-1. The Final Rule was signed by the Assistant

Secretary of Fish, Wildlife and Parks for the Department of the Interior, Rob Wallace, who had

been confirmed by the Senate to this position on June 27, 2019. 2 Id. at 69,188. The NPS

published the proposed rule on April 8, 2020. See General Provisions, Electric Bicycles, 85 Reg.

19, 711 (Apr. 8, 2020). The Final Rule went into effect on December 2, 2020. Final Rule at

69,177.

There are differences between the Smith Directive and Final Rule. First, the Final Rule

amended NPS Regulation 36 C.F.R. § 1.4 to add a new category of “electric bicycle” and

exclude e-bikes from the definition of “motor vehicles.” Final Rule at 69, 177 and 69,188. This

differs from the Smith Directive, which simply changed its interpretation of NPS’s existing

2
U.S. Senate Committee for Environment and Public Works, Press Releases: Senate
Unanimously Confirms Wyoming’s Rob Wallace to be Assistant Secretary for Fish, Wildlife and
Parks (June 27, 2019), available at https://www.epw.senate.gov/public/index.cfm/2019/6/senate-
unanimously-confirms-wyoming-s-rob-wallace-to-be-assistant-secretary-for-fish-wildlife-and-
parks. The Court may take judicial notice of publicly available materials and information, such
as the Federal Register and information available on government websites. See, e.g., Knapp
Med. Ctr. v. Burwell, 192 F. Supp. 3d 129, 131 n.1 (D.D.C. 2016) (allowing judicial notice to be
taken of contents of government website); Banner Health v. Sebelius, 797 F. Supp. 2d 97, 112
(D.D.C. 2011) (“The contents of the Federal Register shall be judicially noticed.”) (quoting 44
U.S.C. § 1507)).

4
regulations to conclude that e-bikes do not fall into the category of “motor vehicles.” The Final

Rule also uses more permissive language than the Smith Directive, providing that “electric bikes

may be allowed on roads, parking areas, administrative roads and trails that are open to

bicycles.” Final Rule at 69,188 (emphasis added). In contrast, the Smith Directive indicated to

park superintendents that “[e]-bikes are allowed where traditional bicycles are allowed.” Smith

Directive at 2.

The text of the Final Rule explicitly states that, “once effective, [the Final Rule] will

supersede and replace [the Smith Directive].” Final Rule at 69,177. Despite this statement,

Plaintiffs argue that the Smith Directive continues to have ongoing policy consequences despite

the issuance of the Final Rule. They point to text in the Final Rule’s Preamble which notes that

as of the date of publication, “380 units of the National Park System have implemented the e-

bike policy [pursuant to the Smith Directive] . . . this means that for each of these NPS units e-

bikes are already allowed subject to the rules governing them that are set out in the compendium

and no further action would be needed to reauthorize[] the continued use of e-bikes under this

regulation.” Id. at 69,176. Accordingly, these 380-park specific-approvals of e-bikes made

under the Smith Directive regime would appear to continue to this day, without needing to be re-

certified under the current Final Rule.

B. This Civil Action

Plaintiffs filed the original complaint in this action on December 5, 2019, seeking

declaratory and injunctive relief, inter alia, prohibiting Defendants from allowing e-bikes in the

National Park system without completing a rulemaking. See Compl. ¶¶ A–L. The complaint

included five claims brought pursuant to the APA and various other statutes. Id. ¶¶ 52–83.

Plaintiffs’ first claim alleges that the Smith Directive impermissibly amended long-existing NPS

5
regulations on bicycle use in National Parks by putting e-bikes under general bicycle regulations

through the “false guise” of a policy change. Compl. ¶¶ 52–61. 3 They contend that this action

violated the APA by circumventing the notice and comment procedures required by the APA for

amending existing regulations, while also violating existing NPS regulations. Id. ¶¶ 32–40, 52–

61 (Claim I). In their second claim, Plaintiffs assert that the Smith Directive violated the

National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(c), due to Defendants’ alleged

failure to prepare either an environmental assessment or an environmental impact statement to

assess the environmental implications of the Smith Directive. Compl. ¶¶ 40, 62–66 (Claim II).

Plaintiffs also find fault with the method by which the Smith Directive was promulgated.

They argue in their third claim that the Smith Directive was ultra vires because former Deputy

NPS Director Smith, who issued the Smith Directive under the authority of an “acting Director”

of the NPS, lacked proper authority to hold this position under the Federal Vacancies and

Reform Act (“FVRA”), 5 U.S.C. §§ 3345–3349. Compl. ¶¶ 68–71 (Claim III). Similarly, in

their fourth claim, Plaintiffs assert that because the NPS Organic Act, 54 U.S.C. § 100302, limits

NPS to only two deputy directors at one time, and because three individuals, including Mr.

Smith, held this role at the time the Smith Directive was issued, Mr. Smith’s issuance of the

directive must be found ultra vires and without force or effect. Compl. ¶ 74–75 (Claim IV).

Finally, in their fifth and final claim, Plaintiffs allege that from 2017 through 2019, the

NPS held at least eight industry-dominated policy advisory meetings of the E-bike Partner and

Agency Group, meetings that they contend were illegal under the Federal Advisory Committee

3
E-bikes were previously classified under the NPS definition of “motor vehicle.” 36
C.F.R. § 1.4 (“Motor vehicle means every vehicle that is self-propelled and every vehicle that is
propelled by electric power. . ..”). In contrast, bicycles were previously limited to “every device
propelled solely by human power upon which a person or persons may ride on land, having one,
two, or more wheels.” Id.

6
Act (“FACA”), 5 U.S.C. § App’x 3, in that they were not properly open to the public and

included numerous private industry representatives “who advised and advocated for e-bike de-

regulation.” Compl. ¶¶ 41–44, 77–83 (Claim V). The administrative record was filed and served

by Defendants on June 1, 2020. ECF No. 9-1.

On November 2, 2020, following the issuance of the Final Rule, Defendants filed their

Motion to Dismiss Plaintiffs’ Complaint as Moot (“Defs.’ MTD”), ECF No. 21, pursuant to

Federal Rule of Civil Procedure 12(b)(1). Shortly thereafter, and while Defendants’ motion to

dismiss was still pending, Plaintiffs filed their own motion, seeking leave to file a supplemental

complaint pursuant to Federal Rule of Civil Procedure 15(d) to incorporate allegations and facts

regarding the Final Rule. See Pls.’ Motion for Leave to File Supplemental Complaint (“Pls.’

Mot. Leave”), ECF No. 25. The supplemental complaint brings the same five claims, but each

has been updated to incorporate references to the Final Rule. It is these two motions that are the

primary subject of this Memorandum Opinion.

In addition, a number of procedural motions are also before the Court. They include

Plaintiffs’ Motion to Stay Pending Rulemaking, ECF No. 10, Defendants’ Motion for Leave to

File Surreply, ECF No. 18, Plaintiffs’ Motion to Modify Briefing Schedule, ECF No. 20, and

Plaintiffs’ Motion to Complete or Supplement Administrative Record, ECF No. 11. The Court

will quickly address the procedural motions before turning to the substantive matters at hand.

III. LEGAL STANDARDS

A. Legal Standards for Supplementing a Complaint

Rule 15(d) of the Federal Rules of Civil Procedure authorizes a court, “on reasonable

notice” and “on just terms,” to permit a party to file a supplemental complaint setting forth any

“occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R.

7
Civ. P. 15(d). Supplemental complaints are thus used “to set forth new facts that update the

original pleading or provide the basis for additional relief; to put forward new claims or defenses

based on events that took place after the original complaint or answer was filed; [and] to include

new parties where subsequent events have made it necessary to do so.” United States v. Hicks,

283 F.3d 380, 386 (D.C. Cir. 2002) (citing 6A Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 1504 (3d ed. 2010)). By allowing this flexibility,

Rule 15(d) operates “to make pleadings a means to achieve an orderly and fair administration of

justice.” Gomez v. Wilson, 477 F.2d 411, 417 n.34 (D.C. Cir. 1973) (quoting Griffin v. Cnty.

Sch. Bd., 377 U.S. 218, 227 (1964)).

A court “has broad discretion in determining whether to allow supplemental pleadings.”

Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., No. 11-cv-1623,

2015 WL 13691541, at *2 (D.D.C. Feb. 3, 2015). Supplemental pleadings are “to be freely

granted when doing so will promote the economic and speedy disposition of the entire

controversy between the parties, will not cause undue delay or trial inconvenience, and will not

prejudice the rights of any of the other parties to the action.” Hall v. CIA, 437 F.3d 94, 101

(D.C. Cir. 2006) (internal quotation marks omitted). Supplementation is allowed even in

situations where “the original pleading is defective in stating a claim,” such as due to mootness.

Fed. R. Civ. P. 15(d). A court may, however, deny a motion to file a supplemental complaint as

futile “if the proposed claim[s] would not survive a motion to dismiss.” Hettinga v. United

States, 677 F.3d 471, 480 (D.C. Cir. 2012) (affirming denial of leave to file a supplemental

complaint); Oladokun v. Corr. Treatment Facility, 5 F. Supp.3d 7, 13 (D.D.C. 2013) (explaining

that when a party argues that a claim is futile because it would not survive a motion to dismiss,

the claim is analyzed “under the same standard as would be applied to a motion to dismiss”

8
pursuant to Rule 12(b)(6)). Consequently, “in deciding whether to grant or deny a motion to

supplement, the Court may consider the merits of the proposed new pleading.” Lannan Found. v.

Gingold, 300 F. Supp. 3d 1, 12 (D.D.C. 2017) (citing Burka v. Aetna Life Ins. Co., 945 F. Supp.

313, 317 (D.D.C. 1996)).

B. Legal Standard for Motions to Dismiss for Mootness

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, courts must dismiss any

claim over which they lack subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1); see also

Arbaugh v. Y&H Corp., 546 U.S. 500, 506–07 (2006). Such a motion can be raised “at any

time” during the litigation. Fed. R. Civ. P. 12(h)(3). 4

The D.C. Circuit has explained that “[f]ederal courts lack [subject matter] jurisdiction to

decide moot cases because their constitutional authority extends only to actual cases or

controversies.” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quoting Iron Arrow Honor

Soc’y v. Heckler, 464 U.S. 67, 70 (1983)); see also Church of Scientology v. United States, 506

U.S. 9, 12 (1992) (noting that a court has “no authority to give opinions upon moot questions or

abstract propositions, or to declare principles or rules of law which cannot affect the matter in

issue in the case before it.”) (citations omitted). A case becomes constitutionally moot when

“the issues presented are no longer live or the parties lack a legally cognizable interest in the

outcome,” Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013), or when

“intervening events make it impossible to grant the prevailing party effective relief.” Lemon v.

4
In evaluating a motion to dismiss for lack of subject matter jurisdiction, the Court is not
limited (as is typical) to the allegations contained in the complaint. See Wilderness Soc’y v.
Griles, 824 F.2d 4, 16 n. 10 (D.C. Cir. 1987). This is because the motion focuses on the Court’s
very power to hear a claim. Id. Instead, “where necessary, the court may consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974
F.2d 192, 197 (D.C. Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

9
Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008) (quoting Burlington N. R.R. Co. v. Surface Transp.

Bd., 75 F.3d 685, 688 (D.C. Cir. 1996)). “Corrective action by an agency is one type of

subsequent development that can moot a previously justiciable issue.” Nat. Res. Def. Council v.

U.S. Nuclear Regul. Comm’n, 680 F.2d 810, 814 (D.C. Cir. 1982); see also Theodore Roosevelt

Conservation P’ship v. Salazar, 661 F.3d 66, 79 (D.C. Cir. 2011) (finding as moot superseded

agency Record of Decision that had “no current force or effect”).

“The initial ‘heavy burden’ of establishing mootness lies with the party asserting a case is

moot.” Honeywell Int’l, Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010)

(citing Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998)). However, it

is the opposing party who bears the burden of showing an exception to the mootness doctrine

applies. Id.; see also Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1,

14 (D.C. Cir. 2019).

IV. ANALYSIS

A. Preliminary Procedural Motions

1. Defendants’ Motion to Stay Pending Rulemaking is Dismissed as Moot

On June 11, 2020, Defendants moved to stay this litigation until October 15, 2020,

pending the issuance of the final regulation regarding e-bikes. See Defs.’ Mot. for Temp. Partial

Stay of Litig. Pending Completion of Rulemaking (“Defs.’ Mot. for Stay”), ECF No. 10.

Defendants argued at the time that the stay would allow the Court “to avoid unnecessary

litigation” because upon the issuance of a final rule, they contended that Plaintiffs’ claims would

become “constitutionally moot.” Defs.’ Mot. for Stay at 1. For this reason, Defendants

requested a stay that would “automatically expire on October 15, 2020 . . . when Defendants file

a notice that the final rule has been published.” Id. But the Final Rule has now been published

10
and this date elapsed, and indeed, Defendants now directly challenge the subject matter

jurisdiction of Plaintiffs’ claims on the aforementioned grounds. See generally Defs.’ MTD.

Because the Defendants’ entire rationale for this motion has been eclipsed by the progression of

events in this case, the Court will deny Defendants’ Motion for Stay as moot. 5

2. Plaintiffs’ Motion to Modify Briefing Schedule is Denied

Turning to the next procedural motion, on October 19, 2020, Plaintiffs filed a motion

requesting that the Court accelerate briefing on the merits by allowing summary judgment

briefing to commence within 30 days of an entry of any Court Order. See Pls.’ Mot. Mod.

Sched. at 7, ECF No. 20. The motion sought to alter the current schedule governing this case

which states that Plaintiffs are to file their Motion for Summary Judgment within 30 days after

any intervening motions are decided by the Court. See March 31, 2020 Minute Order. Because

this opinion resolves the intervening motions in this case, Plaintiffs’ prior request is obsolete.

Consequently, the Court denies Plaintiffs’ motion to modify the briefing schedule.

B. Plaintiffs’ Motion for Leave to File Supplemental Complaint and Defendants’ Motion to

Dismiss for Mootness

In light of the issuance of the Final Rule, Defendants filed a motion to dismiss the

original complaint as moot on November 2, 2020. See Defs.’ MTD. Within the same week,

Plaintiffs sought leave to file a supplemental complaint, which, while preserving many of

Plaintiffs’ original claims, also incorporates allegations pertaining to the Final Rule. See Pls.’

Mot. Leave. Defendants oppose this motion, citing both judicial efficiency concerns while also

arguing that the proposed supplementation should be denied on futility grounds, for largely the

5
Plaintiffs’ Motion for Leave to File Surreply on this issue, ECF. No. 18, is also denied
as moot, given the mootness of the entire issue of the stay in question.

11
same mootness issues they raise in their motion to dismiss. See Defs.’ Opp’n to Pls.’ Mot. for

Leave to File Supp. Compl. (“Defs.’ Leave Opp’n”), ECF No. 28. Despite Defendants’

arguments to the contrary, the Court finds that the grant of leave is appropriate here as it will

“promote the economic and speedy disposition of the entire controversy” and no undue delay or

prejudice to Defendants will result. Hall, 437 F.3d at 101. Furthermore, because the Court is

permitted to consider the merits of the proposed supplemental complaint, and given that

Defendants’ motion to dismiss focuses on many of the same issues with overlapping arguments,

Defendants’ concerns regarding the potential futility of the supplemented claims can be

addressed and resolved here with minimal confusion. The Court will proceed by first addressing

Defendants’ judicial efficiency concerns, before conducting a review of Plaintiffs’ proposed

supplemental complaint against the futility standard. In doing so, it will incorporate and evaluate

the arguments raised in Defendants’ motion to dismiss, as the Rule 15(d) futility standard and

Rule 12 dismissal standard is one and the same. 6

1. Granting Plaintiffs Leave to File their Supplemental Complaint is in the Interest of Judicial

Efficiency

Looking first at the judicial efficiency concerns surrounding the motion for leave,

Plaintiffs posit—and the Court agrees— that allowing them leave to supplement their complaint

will promote the speedy disposition of the entire controversy. Plaintiffs’ proposed supplemental

complaint focuses on the same core issue from the original complaint—agency action pertaining

to e-bike use in National Parks. Plaintiffs make the reasonable point that because the Smith

6
The futility standard under Rule 15(d) asks if the proposed supplemental claims would
survive a motion to dismiss under Rule 12. See Oladokun, 5 F. Supp.3d at 13. Accordingly, in
conducting this analysis the Court will address the arguments raised by Defendants in their
motion to dismiss briefing regarding the mootness issue.

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Directive and Final Rule are “tightly intertwined,” familiarity with the Smith Directive is

necessary to fully understand and evaluate any supplemented claims based on the Final Rule.

Pls.’ Reply in Support of Mot. for Leave (“Pls.’ Leave Reply”) at 18, ECF No. 30. This

argument finds support in the text of the Final Rule, which explicitly states that it “codifies the

decision made in the [Smith Directive].” Final Rule at. 69,186. And compared to the

alternative, supplementing the complaint is a far more reasonable course of action. In lieu of

supplementation, Plaintiffs would have to file an entirely new case, a largely redundant and

costly move. Unlike supplementation, having to file a new related case (that pursuant to the D.C.

District Court Local Rules, would likely make its way back before this Court) would cause

unnecessary delay and filing fees to be borne by Plaintiffs (who are largely non-profit

organizations). Consequently, allowing leave to file a supplemental complaint will best conserve

the resources of both the Court and counsel, and allow the Court to address the matters at issue

efficiently.

Defendants still contend that judicial economy would be better served by “requiring

Plaintiffs to file any challenge to the [Final Rule] in a new case,” Defs.’ Leave Opp’n at 10,

relying on the argument that Plaintiffs’ proposed supplemental complaint, by entangling moot

claims with new claims, needlessly complicates the case. Id. But this concern is addressed in

this very briefing. Moot claims are necessarily futile. See Larsen, 525 F.3d 1, 4 (D.C. Cir. 2008)

(noting courts lack subject matter jurisdiction over moot claims); see also Ulibarri v. Southland

Royalty Co., LLC, No. 16-cv-215, 2019 WL 78781, at *3 (D.N.M. Jan. 2, 2019) (explaining that

because “[c]ourts do not have subject matter jurisdiction over moot claims,” proposed

amendments that were moot were “futile.”). Consequently, the Court will review the

supplemental complaint under the governing futility standard, while concurrently considering the

13
arguments raised in Defendants’ motion to dismiss, and prohibit supplementation of any claims

that have been rendered moot by the passage of the Final Rule. This will prevent the “needless

complication” Defendants fear. Moreover, Plaintiffs’ supplemental complaint will allow the

Court to focus on the complete set of issues in this controversy that are live and ready for

adjudication, allowing for a comprehensive—not piecemeal— resolution.

Supplementation of the complaint will also not cause undue delay or trial inconvenience,

given the relatively early stage of this litigation. Nor do the Defendants provide any reason that

they will be unduly prejudiced by this decision. As a result, the Court finds there is no reason for

it to not “freely grant” Plaintiffs leave to file their supplemental complaint for all claims that

survive the Court’s futility analysis.

C. Futility Analysis of Plaintiffs’ Proposed Supplemental Complaint

The Court will now evaluate Plaintiffs’ proposed supplemental complaint to determine if

it can pass the futility analysis. Defendants raise several overarching issues in arguing for

futility. First, they contend that the Smith Directive was not a final agency action, and thus any

suit challenging it lacks the required cause of action to proceed under the APA. Second, they

claim Plaintiffs’ proposed supplemental complaint brings programmatic attacks on the NPS’s

general e-bike program, a type of challenge that is similarly verboten under the APA. Third and

last, Defendants argue that all of Plaintiffs’ claims against the Smith Directive have been mooted

in their entirety by the issuance of the Final Rule. The Court examines each claim in turn below.

1. The Smith Directive Was a Final Agency Action

Defendants begin their attack on Plaintiffs’ proposed supplemental complaint by

contending that the Smith Directive does not constitute a final agency action, and thus cannot be

challenged under the APA. Defs.’ Leave Opp’n at 6. Because of this deficiency, they argue that

14
all five counts of Plaintiffs’ proposed supplemental complaint fail to state a claim to the extent

they challenge the Smith Directive. Id. This argument has no merit.

Under the APA, judicial review is only available to “final agency action.” 5 U.S.C. § 704.

If this threshold is not met, the case cannot proceed, as Plaintiffs would lack a cause of action.

See Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 806 (D.C. Cir.

2006) (noting Section 704 operates to “limit[] causes of action under the APA.”). The APA

defines “agency action” as including “the whole or part of an agency rule.” 5 U.S.C. § 551(13).

An agency “rule,” in turn, is defined as including “the whole or a part of an agency statement of

general or particular applicability and future effect designed to implement, interpret, or prescribe

law or policy.” Id. § 551(4) (emphasis added). The Smith Directive meets these criteria. It was

a statement issued by the top NPS officer, interpreting the current NPS regulations and setting e-

bike policy, that required NPS park superintendents to take concrete steps to allow e-bikes within

NPS parks. See generally Smith Directive. The fact that it was not promulgated through notice

and comment rulemaking has no bearing on this analysis. See Nat’l Ass’n of Home Builders v.

United States Army Corps of Eng’rs, 417 F.3d 1272, 1285 (D.C. Cir. 2005) (“[W]e have not

hesitated to consider an agency pronouncement issued without meeting required APA procedures

a rule.”); see also Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000)

(“That the issuance of a guideline or guidance may constitute final agency action has been settled

in this circuit for many years.”). Indeed, in the Final Rule, the NPS even referred to the Smith

Directive as the “established [e-bike] management regime.” Final Rule at 69,186.

Consequently, since the Smith Directive can properly be considered an “agency action,” the

question becomes whether it is also sufficiently final for the purposes of section 704.

15
 The Supreme Court has articulated a two-part test for determining whether an agency

action is final. See Bennett v. Spear, 520 U.S. 154, 177–78 (1997). “First, the action must mark

the ‘consummation’ of the agency's decision-making process—it must not be of a merely

tentative or interlocutory nature.” Id. (citation omitted). Second, “the action must be one by

which rights or obligations have been determined or from which legal consequences will flow.”

Id. at 178 (internal quotation marks and citation omitted). Courts are further directed to “apply

the finality requirement in a ‘flexible’ and ‘pragmatic’ way.” Ciba–Geigy Corp. v. EPA, 801

F.2d 430, 435 (D.C. Cir. 1986) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149–50, 87

(1967)).

Defendants argue that neither requirement is met here. They claim that the Smith

Directive was not the “consummation of the agency’s decision-making process” because the

directive itself did not specifically “designate any road or trail as open to e-bikes,” instead

leaving those decisions “to be made at the park level.” Defs.’ Leave Opp’n at 6–7. They also

imply that the second requirement of the Bennett test, that the action in question be the type “by

which rights or obligations have been determined, or from which legal consequences will flow,”

fails for the same reason. Id. The Court disagrees as to both prongs of the test.

As the D.C. Circuit has dictated, “[t]he consummation prong of the finality inquiry

requires us to determine ‘whether an action is properly attributable to the agency itself and

represents the culmination of that agency’s consideration of an issue,’ or is, instead, ‘only the

ruling of a subordinate official, or tentative.’” NRDC v. Wheeler, 955 F.3d 68, 78 (D.C. Cir.

2020) (quoting Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir.

2018)). The Smith Directive speaks for the NPS, articulating the agency’s overall policy and

approach with respect to e-bikes. It uses mandatory—not tentative—language, stating that that

16
“[e]-bikes are allowed where traditional bicycles are allowed,” and lists as a “required action”

that “[s]uperintendents are directed to manage bikes consistent with this [Directive].” Smith

Directive at 2, 4. Moreover, the policy document was issued by Deputy Director Smith,

“exercising the authority of the [NPS] Director,” Smith Directive at 1, meaning this action

emanated from one of the highest-ranking officials at the NPS. Taken together, these factors

indicate the first prong of the finality inquiry is met. See POET Biorefining, LLC v.

Environmental Protection Agency, 970 F.3d 392, 404 (D.C. Cir. 2020) (holding that guidance

constituted consummated agency action where it “consistently speaks in [agency’s] voice, setting

forth the ‘interpretation’ and ‘guidance’ of the agency” and had been issued by a high-ranking

official).

Defendants’ argument to the contrary is belied by the text of the directive. The Smith

Directive clearly announces that the NPS policy on e-bikes is that “[e]-bikes are allowed where

traditional bicycles are allowed” and directs park superintendents “to manage e-bikes consistent

with this Memorandum.” Smith Directive at 2. It further “required” that park superintendents

“must take the following actions as soon as possible” including updating their park

compendiums to read that “E-bikes are allowed in [insert name of park] where traditional

bicycles are allowed.” Id. at 4. Consequently, for the thirteen park units that already allowed

traditional bicycle-use prior to the promulgation of the Smith Directive, they had no option but to

implement this policy. See Supp. Compl. ¶¶ 36–37. So while Defendants are correct in that

individual park superintendents retained the ability to thereafter impose “limit[s] or restrict[ions]

or impose conditions on bicycle use, including specific limitations on e-bike use,” after going

through a number of procedural steps, Smith Directive at 3, they were still required to first

impose the overarching NPS policy of equal treatment between e-bikes and traditional bicycles.

17
In sum, the language of the directive makes clear that the settled NPS rule going forward was

that “e-bikes are allowed where traditional bicycles are allowed . . . [t]he intent of this policy is

to allow e-bikes to be used for transportation and recreation in a similar manner to traditional

bicycles.” Id. at 1–2. The Smith Directive thus constituted the consummation of the NPS’s

decision-making process on the topic of e-bikes. 7

Proceeding to the second question under the Bennett test, the Court must determine

whether the Smith Directive has direct and appreciable legal consequences. This inquiry

requires the Court to “pragmatic[ally]” focus on “the concrete consequences [the] action has or

does not have . . .” Cal. Cmtys. Against Toxics v. EPA, 934 F.3d 617, 637 (D.C. Cir. 2019)

(internal quotation marks omitted).

The Smith Directive, in effect, served to backhandedly amend the long-standing NPS

regulations on bicycle use in NPS parks by moving e-bikes—which until this point fell under the

NPS regulations regulating motor vehicles—under the same regulations as those that governed

traditional bicycles. As the Smith Directive mandated, “[a] person operating an e-bike is subject

to the following sections of 36 CFR part 4 that apply to the use of traditional bicycles.” Smith

Directive at 3. Consequently, the Smith Directive created direct and appreciable legal

consequences for NPS park patrons—they now had the new right to operate an e-bike where

7
To the extent Defendants somewhat obliquely argue that the Smith Directive was not a
final agency action because it was later replaced by the Final Rule, see Defs.’ Leave Opp’n at 7,
this ignores that an “interim agency resolution counts as final agency action despite the potential
for a different permanent decision, as long as the interim decision is not itself subject to further
consideration by the agency. In that event, the interim resolution is the final word from the
agency on what will happen up to the time of any different permanent decision.” Wheeler, 955
F.3d at 78; see also Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000)
(noting “the fact that a law may be altered in the future has nothing to do with whether it is
subject to judicial review at the moment.”). Because the Smith Directive constituted the “final
word” from the NPS on the topic of e-bikes until the Final Rule was promulgated, Defendants’
argument has no bearing on the finality analysis.

18
traditional bicycles were allowed. See Smith Directive at 2 (“E-bikes are allowed where

traditional bicycles are allowed”).

Again, the limited discretion reserved to park superintendents to make trail specific

designations does not negate that the policy had concrete legal consequences. In Appalachian

Power Co., the D.C. Circuit found that an EPA guidance document created legal consequences

necessary for finality because the policy document created “obligations on the part of State

regulators and those they regulate.” 208 F.3d at 1023 (noting the document “commands, it

requires, it orders, it dictates,” giving states “their ‘marching orders’” that the EPA expected

them to follow, and that almost all of them did). The Smith Directive operated in much the same

way, creating obligations on the part of the park superintendents, “direct[ing]” them to “manage

e-bikes consistent with this memorandum,” “requir[ing]” edits to their park compendium to

allow e-bikes where traditional bicycles were allowed, and that e-bikes and traditional bicycles

be subject to the same regulations. Smith Directive at 2,4. The “marching orders” the directive

gave to park superintendents was clear—going forward, in NPS parks, "e-bikes are allowed

where traditional bicycles are allowed.” Id. (emphasis added). This conclusion is reinforced by

the fact that over 380 NPS park units “fell in line” and adopted these measures by the time the

Final Rule was promulgated. Based on these facts, the Court finds that the Smith Directive was

a final agency action, as it reflected the settled NPS position on e-bikes and created legal

consequences and obligations for park superintendents managing individual NPS Parks and for

park patrons who gained the right to use e-bikes in NPS parks.

2. The Supplemental Complaint Does Not Bring Programmatic Attacks

Defendants next try to block the filing of Plaintiffs’ proposed supplemental complaint on

the grounds that they claim it brings non-justiciable, programmatic attacks on the NPS’s e-bike

19
policies in general. Contrary to Defendants’ contentions, the Court finds that Plaintiffs challenge

only discrete agency actions subject to review under the APA.

The APA permits judicial review only when “[a] person suffer[s] legal wrong because of

agency action, or [is] adversely affected or aggrieved by agency action within the meaning of the

relevant statute.” 5 U.S.C. § 702. “Agency action,” in turn, “includes . . . an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13); see

also id. § 701(b)(2). Each type of agency action is “circumscribed” and “discrete.” Norton v. S.

Utah Wilderness All., 542 U.S. 55, 62 (2004). As a result, the APA proscribes “‘broad

programmatic attack[s]’ on an agency’s compliance with a statutory scheme.” Citizens for Resp.

& Ethics in Wash. v. U.S. Dep’t of Homeland Sec., No. 18-cv-2473, 2020 WL 7024193 (D.D.C.

Nov. 30, 2020) (quoting Norton, 542 U.S. at 64). This means that an “entire [agency] program

cannot be laid before the courts for wholesale correction under the APA.” Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 891 (1990) (rejecting wholesale challenge to Bureau of Land

Management’s land withdrawal review program as impermissibly programmatic, holding that

plaintiff must instead “direct its attack against some particular ‘agency action’ that cause[d] it

harm.”). Nor can a plaintiff bring “generalized complaints about agency behavior,” because “an

on-going program or policy is not, in itself, a ‘final agency action’ under the APA.” Cobell v.

Kempthorne, 455 F.3d 301, 307 (D.C. Cir. 2006) (quoting Cobell v. Norton, 240 F.3d at 1095).

However, the Court finds that none of these flaws infect Plaintiffs’ proposed supplemental

complaint.

Defendants, while acknowledging that the Smith Directive and Final Rule are discrete

acts, contend that Plaintiffs’ references to “unspecified approvals” of e-bike use taken by park

superintendents constitute a forbidden programmatic attack on “NPS’s management of e-bikes in

20
its totality.” Defs.’ Leave Opp’n at 7–8. But this is simply not an accurate reflection of the

content of the proposed supplemental complaint, which does not lodge any sort of generalized

programmatic attack. Plaintiffs’ supplemental complaint is squarely focused on the Smith

Directive and Final Rule, and seeks only relief stemming directly from these two agency

actions. 8

A review of Lujan is instructive. There, the Supreme Court held that plaintiffs brought a

programmatic attack because they challenged not “a single . . . order or regulation” but rather an

entire program the agency colloquially referred to as its “land withdrawal review program,” that

was comprised of “1250 or so individual classification terminations and withdrawal

revocations.” Lujan, 497 U.S. at 890 (citation omitted). By contrast, here Plaintiffs challenge

only the NPS’s Smith Directive and Final Rule. It is true that Plaintiffs seek relief in the form of

this Court “[s]et[ting] aside the actions of all the Defendants that have allowed e-bike use on

non-motorized trails in the National Park System.” Supp Compl. ¶ F. But these are actions that

were taken directly pursuant to the challenged Smith Directive and Final Rule. And as the

Supreme Court explained in Lujan, an agency action is reviewable “to the extent that, specific

8
A review of the specifics of the “unspecified approvals” that Defendants claim
constitute impermissible programmatic attacks in the proposed supplemental complaint further
reinforces that this argument is without merit. The first reference is to a portion of the proposed
supplemental complaint that merely lists the NPS park units with designated bike trails in
backcountry areas, along with Plaintiffs’ allegation that, “[t]he Smith Directive . . . opened all of
them effective on August 30, 2019, to e-bike use by his fiat.” Supp. Compl. ¶ 37. This is not an
attack on an entire program but rather an illustration of a specific effect caused by the Smith
Directive that Plaintiffs challenge. The other “unspecified approval” Defendants identify is
nothing more than a citation to Plaintiffs’ NEPA claim, which asserts that “Defendants’ e-bikes
approvals, including the initial Smith Directive, the more than 380 individual Park Unit
approvals to date, and the Final Rule, were connected agency actions with the potential for
environmental impacts that triggered NEPA’s compliance requirements.” Supp Compl. ¶ 56.
Again, the Court struggles to see how this is a programmatic attack, as opposed to a specific
pleading targeting the Smith Directive and Final Rule and the direct policy consequences of
these final agency actions.

21
‘final agency action’ has an actual or immediately threatened effect.” Lujan, 497 U.S. at 894.

Here, the actual effect of the Smith Directive and Final Rule has been to open up NPS parks to e-

bikes. Thus, Plaintiffs do not mount a programmatic attack, but rather seek to also rein in the

direct effects of the two final agency actions they challenge. See, e.g., Bark v. U.S. Forest Serv.,

37 F. Supp. 3d 41, 50–51 (D.D.C. 2014) (permitting challenge to five specific purported

applications of a challenged policy). Therefore, the Court rejects Defendants’ argument for

futility on these grounds.

3. Plaintiffs’ Proposed Supplemental Complaint is Not Moot

The Court now turns to its inquiry into whether any of the claims brought by Plaintiffs

are moot, and thus futile. Defendants argue in their motion to dismiss that the issuance of the

Final Rule, by explicitly superseding and replacing the Smith Directive, has mooted the entirety

of Plaintiffs’ original complaint. Defs.’ MTD at 1. If true, then any claims against the Smith

Directive preserved in Plaintiffs’ proposed supplemental complaint cannot proceed. 9 Plaintiffs

contest this assertion, claiming that the Final Rule did not fully supersede the Smith Directive

“because its harmful effects remain intact” and because the scope of the Smith Directive was less

permissive than the Final Rule. Pls.’ MTD Opp’n at 10, 12. The Court concludes that because it

remains able to award real-world relief to Plaintiffs, these claims are not moot. Accordingly, it

will allow Plaintiffs leave to file their proposed supplemental complaint.

The Court does not contest that courts regularly find that actions challenging superseded,

expired, or withdrawn agency polices or decision documents are moot because they no longer

9
As Defendants accurately note, Plaintiffs’ proposed supplemental complaint still retains
nearly all of the allegations targeting the Smith Directive from their original complaint, Defs.’
Leave Opp’n at 5 n.3, with the only exception being Count I which pares down Plaintiffs’
original allegations slightly.

22
present a live controversy. See, e.g., Theodore Roosevelt Conservation P’ship, 661 F.3d at 79

(finding that a superseded agency policy document “no longer exists” and any action brought to

challenge it is moot); Blue Water Balt. v. Pruitt, 266 F. Supp. 3d 174, 180–81 (D.D.C. 2017)

(determining that where a newly issued EPA report superseded the previous iteration of the

report, it “thus moot[ed] the plaintiffs' challenge to the reclassifications in the [original report]”);

Fund for Animals, Inc. v. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006) (finding claim

against expired policy memorandum moot); see also Worth v. Jackson, 451 F.3d 854, 861 (D.C.

Cir. 2006) (“[T]he Constitution nowhere licenses us to rule on the legality of an agency policy

that no longer exists.”).

This conclusion rests on the principal that where there is no longer any live controversy

between the parties, there remains no role for the courts. “If it becomes impossible for the court

to grant any effectual relief whatever to a prevailing party on a particular claim, that claim must

be dismissed.” Theodore Roosevelt Conservation P’ship, 661 F.3d at 79 (emphasis added and

internal quotations omitted); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601

F.3d 1096, 1111–12 (10th Cir. 2010) (finding that where a challenged agency opinion had been

superseded, plaintiff’s requested injunctive and declaratory relief would be “meaningless” and

“have no effect in the real world,” rendering action moot). For in this type of situation even if a

court were to issue an opinion, it would be nothing more than a meaningless advisory policy.

See Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (noting that courts have “no

authority to give opinions upon moot questions or abstract propositions, or to declare principles

or rules of law which cannot affect the matter in issue in the case before it.”). And “the oldest

and most consistent thread in the federal law of justiciability is that the federal courts will not

give advisory opinions.” Pub. Serv. Elec. & Gas Co. v. FERC, 783 F.3d 1270, 1274 (D.C. Cir.

23
2015). The crucial question for a mootness inquiry, therefore, often becomes whether a court

remains able to grant any effectual relief.

Defendants argue that this case warrants a straightforward application of these mootness

principals. They contend that, because the text of the Final Rule explicitly states that it

“supersedes and replaces the Smith Directive,” and because the majority of Plaintiffs’ claims

challenge the now superseded Smith Directive, as a result “there is no effective relief available”

for Plaintiffs’ claims, Defs.’ MTD at 11–12, as any live controversy between the parties has

since been extinguished. The plain language of the Final Rule does indeed, unequivocally state

that it “supersedes” the Smith Directive. See Final Rule at 69,177; see also United States v.

Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C. Cir. 2002) (“Where the language is clear, that

is the end of judicial inquiry ‘in all but the most extraordinary circumstances.’”) (citing Estate of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 474 (1992)).

However, this conclusion runs into trouble when the Court turns its focus to the question

of whether it remains able to grant any of the relief requested by Plaintiffs. For a case is only

moot if a court is unable to grant “any effectual relief whatever to the prevailing party.” City of

Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (internal citations and quotation marks omitted;

emphasis added); Calderon v. Moore, 518 U.S. 149, 150 (1996) (“[E]ven the availability of a

‘partial remedy’ is ‘sufficient to prevent [a] case from being moot.’”) (citing Mills v. Green, 159

U.S. 651, 653 (1895)). This bar is not high. To demonstrate a live controversy, Plaintiffs “need

only show that some form of effective relief could be available to them should they prevail—

however partial the remedy, however uncertain its potential to truly address Plaintiffs' concerns.”

Ctr. for Food Safety v. Salazar, 900 F. Supp. 2d 1, 7 (D.D.C. 2012). Plaintiffs manage to clear

this low bar here.

24
 In their proposed supplemental complaint, Plaintiffs ask this Court to “[d]eclare that

Defendants’ actions in the form of the [Smith Directive]’ were arbitrary and capricious, an abuse

of discretion, and otherwise not in accord with the law,” Supp. Compl. ¶ A, and to “[s]et aside

the actions of all the Defendants that have allowed e-bike use on non-motorized trails in the

National Park System.” Supp Compl. ¶ F. This refers to what Plaintiffs term the “improper e-

bikes approvals” in park units that occurred in the interim period after the issuance of the Smith

Directive, but before the Final Rule took effect. Pls. MTD Opp’n at 10–11. The Final Rule

acknowledged that as of the date of publication, 380 NPS units had already implemented the e-

bike policy pursuant to the Smith Directive’s mandate. Final Rule at 69,176. The Final Rule

contains no reference indicating that it should be applied in a retroactive manner, meaning that

the 380 NPS park e-bike designations that occurred prior to the promulgation of the Final Rule

would appear to still be governed by the Smith Directive’s regime. Accordingly, if the Court

were to find the Smith Directive unlawful, it could award real-world relief by invalidating the

park actions taken pursuant to this authority. See 5 U.S.C. § 706(2)(A) (empowering courts to

“hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law”). Because the Court

retains the ability to award effectual relief, with real-world consequences, Plaintiffs’ claims

against the Smith Directive are not moot.

This conclusion is in accord with the findings of other courts that have confronted similar

issues. For example, in Rocky Mountain Farmers Union v. Corey, an amendment to a fuel

standards regulation did not moot an ongoing challenge to the previous regulation, because

credits awarded under the old standard continued forward even under the new regime, 730 F.3d

1070, 1097 n.12 (9th Cir. 2013), just as the e-bike designations made pursuant to Smith Directive

25
continue under the Final Rule here. See Final Rule at 69,176 (noting that “for each of these NPS

units [where] e-bikes are already allowed [under the Smith Directive] no further action would be

needed to reauthorize[] the continued use of e-bikes under this regulation.”). The “propriety of

the scheme under which credits were distributed remain[ed] a live controversy” in Corey, 730

F.3d at 1097 n.12, in much the same way as the legitimacy of the Smith Directive remains a live

issue here because it controls whether the 380 NPS park e-bike designations made pursuant to

the directive were lawful. Similarly, in First National Bank of Lamarque v. Smith, the

Comptroller of the Currency superseded an informal letter directive with a formal regulation that

had undergone notice and comment. See 610 F.2d 1258, 1262–1263 (5th Cir. 1980). However,

the court found that because the new regulation was not retroactive, transactions that occurred

prior to the effective date of the formal regulation continued to be controlled by the letter

directive, meaning an ongoing challenge to the letter directive was not moot. Id; see also Wright

& Miller, 13C Fed. Prac. & Proc. Jurs. § 3533.6 (3d ed. 2020) (noting mootness does not occur

even when an agency action has been superseded “when the former provisions continue to

control the consequences of past transactions.”).

Defendants do not challenge this general proposition. Instead, they contend that the

Court does not have the authority to invalidate any of the individual park decisions to allow e-

bikes made pursuant to the Smith Directive. They assert that a “plain reading” of the Smith

Directive shows that it does not actually “authorize the use of e-bikes in any park.” Defs.’ Mot.

to Dismiss Reply (“Defs.’ MTD Reply”) at 3, ECF 30. This somewhat extraordinary claim

seems to hinge on their contention that “[w]hile the [Smith Directive] provides policy direction,”

it “expressly acknowledged that superintendents retain the authority to limit or restrict or impose

conditions on bicycle use, including specific limitations on e-bike use . . .” Id. at 3. In sum,

26
Defendants’ argument seems to be that because park superintendents retained limited discretion

over where in the parks e-bike were allowed, the individual park decisions cannot be said to have

been made under the Smith Directive at all. As a result, they claim that if Plaintiffs want to

reverse any of the park-specific determinations made to allow e-bikes under the Smith Directive,

they must challenge each of the 380 park designations individually. See Pls.’ MTD Opp’n at 10.

This is outcome is nonsensical, not to mention the Court’s “plain reading” of the Smith

Directive comes to a very different conclusion. The language of the Smith Directive is

mandatory: under the subheading “Required Actions” park superintendents “are directed to

manage e-bikes consistent with this Memorandum under the authority in 36 CFR 1.5(a)(2).”

Smith Directive at 4. The directive’s e-bike policy, with which consistency was required, was

that “e-bikes are allowed where traditional bicycles are allowed.” Id. at 2. The directive’s

required actions for park superintendents continue, noting that, “as soon as possible” and no later

than 30 days after either the issuance of the Smith Directive or the introduction of e-bikes to their

park, superintendents “must” update their park compendium to read that “E-bikes are allowed in

[inset name of park] where traditional bicycles are allowed.” Id. at 4. Based on this text, the

Court struggles to see how Defendants can claim that the Smith Directive did not “authorize the

use of e-bikes in any park.” Defs.’ MTD Reply at 3. The language of the Smith Directive does

not just authorize e-bike use, it makes it compulsory for those NPS parks, of which Plaintiffs

allege there were thirteen, that already allowed other types of bicycles. See Supp. Compl. ¶ 36–

37. Defendants even acknowledged the compulsory nature of the Smith Directive, contrasting it

with the more permissive language employed regarding e-bike use in the Final Rule. See Defs.’

MTD Reply at 4 (“the Rule states that e-bikes ‘may be allowed,’ while the Policy said they ‘are

allowed.’”). The mandatory nature of the Smith Directive is reinforced by the fact that 380 units,

27
or about 90% of the overall NPS system followed the directive—a statistic that does not

demonstrate that individual park superintendents believed they had the discretion to decline to

follow the new e-bike policy.

And while the Final Rule states that “no further action would be needed to reauthorize

continued use of e-bikes” for parks that had already adopted e-bike use, Final Rule at 69,176, it

does not state that the rule applies retroactively such that it encompasses these decisions.

Consequently, even if Plaintiffs followed Defendants’ suggestion and sought to invalidate each

e-bike designation on a park-by-park basis, the administrative record would, the Court imagines,

consist primarily of the Smith Directive. This further reinforces the Court’s conclusion that the

park e-bike approvals constitute agency action taken pursuant to the Smith Directive. 10

For all of these reasons, the Court finds that the 380 individual NPS park unit decisions to

allow e-bikes were taken pursuant to the Smith Directive, and do not constitute separate actions.

And because the APA grants to federal courts such as this one the authority to “set aside agency

action” inconsistent with the APA requirements, see 5 U.S.C. 706, this Court retains the power to

invalidate these park-specific designations if the Smith Directive is found void. As a result,

Plaintiffs’ claims against the Smith Directive remain live, because Defendants have not met their

“heavy” “burden of demonstrating mootness.” County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979) (internal citations and quotations omitted).

10
The Court does not dispute that each NPS park could recertify their e-bike policies
pursuant to the Final Rule that is now in effect. But there is no indication that this has occurred
in this case, meaning that these 380 parks continue to operate under the authority of the Smith
Directive.

28
 In the interest of thoroughness, however, the Court will now review the status of each of

the five claims brought in Plaintiffs’ proposed supplemental complaint to ensure each presents a

live controversy and that supplementation of the complaint as proposed would not be futile.

a. Count I: Alleged Violation of the APA

Plaintiffs’ first claim in its proposed supplemental complaint contends that both the Smith

Directive and Final Rule were “arbitrary, capricious, an abuse of discretion, and otherwise not in

accordance with law, in violation of the APA. Supp. Compl. ¶¶ 52. Because this claim could

withstand a motion to dismiss, the Court will grant Plaintiffs leave to supplement this claim in

full.

Plaintiffs claim that the Smith Directive (and Final Rule) are arbitrary and capricious in

light of aesthetic and safety concerns, see Supp. Compl. ¶¶ 28, 29, and otherwise not in

accordance with law given the alleged NEPA and FVRA violations, see Supp. Compl. ¶¶ 39, 44–

47. These claims are not moot because if the Court finds them to have merit, it can grant

effective relief by invalidating the park e-bike designations that continue under the Smith

Directive’s authority.

Plaintiffs’ supplemented Count I also alleges that the Final Rule violates the APA.

Defendants present no specific argument to address why Count I of the proposed supplemental

complaint would be “futile” in this respect. Mootness is not a concern as the Final Rule remains

live. It is the party opposing—here, the Plaintiffs’—burden to demonstrate why leave to

supplement should not be granted. See LaPrade v. Abramson, No. 97-cv-10, 2006 WL 3469532,

at *3 (D.D.C. Nov. 29, 2006) (citing 3 James Wm. Moore et al., Moore's Fed. Prac. § 15.15[3]

(3d ed. 1999)). They fail to meet this burden. The Court, therefore, finding Defendants’

29
assertions of mootness to be unwarranted, and given the lack of any other ground of futility,

orders this claim to be supplemented in full.

b. Count II: Alleged Violation of NEPA

Plaintiffs’ second claim in its supplemental complaint alleges that both the Smith

Directive and Final Rule violate NEPA due to Defendants’ ongoing failure to issue a

contemporaneous environmental assessment of either the directive or Final Rule. Supp. Compl.

¶¶ 54–58. In arguing for futility, Defendants contend that because the Smith Directive has been

superseded, conducting a NEPA analysis on a now defunct policy “would serve no purpose” and

accordingly, must be found moot. Defs.’ MTD Reply at 8. 11 In rebuttal, Plaintiffs reiterate the

interrelated nature of the purported NEPA violation in the Smith Directive and the NEPA

violation they claim is preserved in the Final Rule to argue that this claim is still live. Pls.’ MTD

Opp’n at 14; see also id. at 13–18. Plaintiffs have the better of the argument, and the Court

agrees that because the Smith Directive is in turn used as a justification for the ongoing lack of

NEPA compliance in the Final Rule, the validity of the initial NEPA determination remains a

live issue.

The Court does not dispute Defendants’ general contention—they are correct that

numerous courts have held that a NEPA challenge to a policy that has been superseded or

otherwise voided is typically moot. See, e.g., Theodore Roosevelt Conservation P’ship, 661 F.3d

at 79 (alleged NEPA violation brought against since superseded Record of Decision dismissed as

moot, as the court could not take action regarding “a Record of Decision that has disappeared

into the regulatory netherworld.”) (citations omitted); Fund for Animals, 460 F.3d at 18 (NEPA

11
Defendants do not present any claim-specific argument as to why Plaintiffs’ NEPA
claim for alleged violations in the Final Rule cannot proceed. Accordingly, the Court focuses its
attention on the mootness inquiry regarding the Smith Directive’s NEPA claim.

30
claim dismissed as moot where the policy memorandum at issue had expired and was thus no

longer in effect); S. Utah Wilderness All. v. U.S. Dep’t of the Interior, 250 F. Supp. 3d 1068 (D.

Utah 2017) (finding that where a permit was no longer operative, the alleged injury to Plaintiffs

rendered by a NEPA violation “ha[d] evaporated.”). Logically this conclusion follows, as

declaring a superseded policy without any legal effect to be in violation of NEPA would “be

wholly without effect in the real world.” Wyoming v. United States, 674 F.3d 1220, 1230 (10th

Cir. 2012).

However, the NEPA claim at issue here is again not the typical case, because the Smith

Directive continues to have an operative effect on the Final Rule’s NEPA compliance (or lack

thereof). The D.C. Circuit has held that a final rule does not moot claims brought challenging a

procedurally defective interim rule, when the final rule was dependent in some way on the

validity of the interim rule. See Union of Concerned Scientists v. Nuclear Regul. Comm’n, 711

F.2d 370, 377 (D.C. Cir. 1983) (concluding that final rule did not moot claim based on interim

rule prescribed without notice and comment, because final rule was predicated in part on the

safety determination made in the interim rule, the validity of which consequently “remain[ed] a

live issue which must be reviewed in some forum.”); see also Schering Corp. v. Shalala, 995

F.2d 1103, 1105–06 (D.C. Cir. 1993) (noting that where a past agency policy document “served

as a foundation for the [later] regulations,” the Court may have more leeway to “reach back to

the [preceding policy document] and issue a judgment on the meaning of the statute,” even when

it had since been superseded); see also Am. Mar. Ass’n v. United States, 766 F.2d 545, 554 n.14

(D.C. Cir. 1985) (“Although aspects of this litigation could also be resolved in a petition to

review the final rule, [defendant’s] issuance of that rule does not moot [plaintiff’s] and the

unsubsidized shipper's challenges, which are equally applicable to the final rule and the interim

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rule.”). In sum, a claim is only moot when nothing turns on its outcome. So when a party can

show that a past agency rule or action has continuing consequences that inform the subsequent

rule, this is sufficient to prevent a claim from being rendered moot.

It is precisely this situation that is now before the Court. The Final Rule, when justifying

why a categorical exclusion to NEPA applies, states that the rule only “codifies the decision

made in the [Smith Directive] but does not change the regulatory treatment of e-bikes . . . in a

way that would result in an expanded range of potential environmental impacts.” Final Rule at

69,186. The Final Rule further justifies this position by noting that 380 NPS units already allow

e-bikes pursuant to the Smith Directive, and that policy already “required those units to evaluate

the environmental impacts of allowing e-bikes under NEPA.” But this characterization is

optimistic at best. The Smith Directive, while first ordering park superintendents to comply with

NEPA, immediately thereafter appeared to absolve park superintendents of this responsibility by

stating that the implementation of the e-bike policy would “ordinarily fall within the categorical

exclusion” to NEPA’s requirements. Smith Directive at 4. Indeed, it was this language and

overall policy that Plaintiffs challenged in their first complaint. See Compl. ¶¶ 62–66.

Consequently, the Court shares Plaintiffs’ concerns that Defendants’ initial failure to comply

with NEPA regulations in the Smith Directive has been “[b]ootsrapped” and used as a false

justification for a continuing NEPA violation in the Final Rule. Pls.’ MTD Opp’n at 14, 17. For

this reason, contrary to Defendants’ assertion, something very real “would be gained by doing a

NEPA analysis on a now superseded policy,” Pls.’ MTD Reply at 8, because this finding directly

informed the Final Rule’s NEPA determination. See Union of Concerned Scientists, 711 F.2d

397 (“Where superseding agency actions repeat the same alleged procedural error, they preserve,

rather than moot, the original controversy.”) (internal citation omitted).

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 As a result, Plaintiffs’ NEPA violation claim brought against the Smith Directive presents

a “live controversy of the kind that must exist if [the court] is to avoid advisory opinions on

abstract questions of law,” Schering Corp., 995 F.2d at 1106, meaning mootness concerns are

not implicated. The Court grants Plaintiffs leave to file Count II of their proposed supplemental

complaint in full.

c. Count III and IV: Alleged Violations of the FVRA and NPS Organic Act

Plaintiffs’ third and fourth claims challenge the issuance of the Smith Directive on the

grounds that the NPS officials who issued and implemented the policy did not have proper

authority under the FVRA and the NPS Organic Act to do so. Supp. Compl. ¶¶ 60–64, 66–68.

Plaintiffs contend that these claims continue to pose a live controversy even following the

issuance of the Final Rule because the claims are “separate from merits of Smith Directive” and

the Final Rule is a “FVRA-violating ratification of that Directive.” Pls.’ MTD Opp’n at 18. For

the reasons described below, the Court finds Plaintiffs’ FVRA and NPS Organic Act claims

survive the issuance of the Final Rule, meaning Plaintiffs’ proposed supplemental complaint for

these claims is not futile.

The FVRA provides that “[a]n [FVRA violating] action that has no force or effect . . .

may not be ratified.” 5 U.S.C. § 3348(d)(2). The FVRA’s prohibition on ratification was

designed to prevent the practice of a properly appointed official reissuing a decision taken in

violation of FVRA provisions, exactly what is alleged to have occurred here. See SW Gen., Inc.

v. N.L.R.B., 796 F.3d 67, 70 (D.C. Cir. 2015) (noting that the “FVRA renders actions taken by

persons serving in violation of the Act void ab initio”), aff’d, 137 S. Ct. 929 (2017). Plaintiffs

argue that the Final Rule is a “FVRA-violating ratification of [the Smith] Directive.” Pls.’ MTD

Opp’n at 18. Consequently, Plaintiffs’ supplemented FVRA claim presents much the same

33
situation for mootness purposes as Plaintiffs’ NEPA claim. A determination of if the Final Rule

was an impermissible FVRA ratification will turn on an evaluation of the Smith Directive’s

FVRA compliance. This means, regardless of the superseding Final Rule, the Smith Directive

continues to have “real world consequences” and for the purposes of the FVRA claim, “remains

a live issue which must be reviewed in some forum.” See Union of Concerned Scientists, 711

F.2d at 377; see also Schering Corp., 995 F.2d at 1105. If the Final Rule ratified the Smith

Directive, which is what is alleged in the proposed supplemental complaint, this would be

enough to stave off mootness.

In response, Defendants contend that no ratification has occurred. They posit that the

Final Rule “is a different action and differs in content,” and catalog every difference between the

two actions, noting that unlike the Smith Directive, the Final Rule underwent notice and

comment rulemaking, formally amended NPS regulations, and grants park superintendents more

latitude in interpreting the e-bike policy going forward. Defs.’ Leave Opp’n at 9. The Court,

however, is not convinced that this issue can be decided without reviewing the administrative

record. The Final Rule explicitly states that it “codifies the decision made in the [Smith

Directive].” Final Rule at 69,186. Moreover, the text of the Final Rule preserves every

individual park decision taken pursuant to the Smith Directive, stating that the 380 Park Units

that have already complied with the Smith Directive require “no further action . . . to

reauthorize[] the continued use of e-bikes under this regulation.” Id. at 69,176. These two

actions, taken together, suggest that the Final Rule may have ratified the substantive policy of the

Smith Directive. Accordingly, Plaintiffs’ claims concerning the alleged FVRA violation of the

Smith Directive remain live, and the Court grants leave to supplement the complaint in this

regard.

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 Somewhat strangely, neither party addresses in detail Count IV of Plaintiffs’

supplemental complaint in any of the numerous briefings before the Court. This claim alleges

that the NPS officials who issued and implemented the Smith Directive did not have proper

authority under the NPS Organic Act to do so. Supp. Compl. ¶¶ 66–68. The Court finds that this

claim survives the mootness attack from Defendants for the same reason already described in-

depth above—because 380 NPS park units continue to allow e-bikes under the Smith Directive’s

authority, if the Court found the directive to be unlawful on the basis of a violation of the NPS

Organic Act, it has an avenue to grant effective relief on this claim by voiding these e-bike

approvals. The Court thus grants Plaintiffs leave to file Count IV of their proposed supplemental

claim in full.

d. Count V: Alleged Violation of FACA

Plaintiffs’ final claim alleges that throughout 2018 and 2019 the NPS hosted a series of

E-bike Partner & Agency Group meetings to receive advice and recommendations on what

would eventually become the Smith Directive—meetings that were held in violation of the

transparency and fairness requirements of FACA. Supp. Compl. ¶¶ 70–73. While Defendants

do not explicitly argue that Plaintiffs’ proposed supplemental complaint FACA claim is futile,

they do posit in their motion to dismiss that because the working group in question has been

disbanded and the Smith Directive superseded, this claim is moot (and thus, supplementation

would be futile). Defs.’ MTD Reply at 11. The Court disagrees, and finds that because effective

relief remains available to Plaintiffs, their proposed supplemental claim here is not futile.

Once again, the Court begins its futility analysis by determining if the claim in question is

moot—meaning it must ascertain if it remains able to grant effective relief. Plaintiffs request in

their supplemental complaint that this Court “[e]njoin any further meetings by Defendants or

35
their staff with the E-bike Partner and Agency Group absent full compliance with FACA[].”

Supp. Compl. ¶ J. They now also request that the Court declare that “[Defendants’] disregard of

FACA was wrong and egregious, otherwise the agency will likely repeat it in similar contexts.”

Pls.’ MTD Opp’n at 26. 12 Because the Court remains able to grant at least some of the relief

requested by Plaintiffs, this claim is not moot. See Calderon, 518 U.S. at 150 (“[E]ven the

availability of a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot.’”) (citing

Mills, 159 U.S. at 653).

The D.C. Circuit has repeatedly held that “FACA rights are enforceable even after an

advisory committee has been disbanded.” Cummock v. Gore, 180 F.3d 282, 292 (D.C. Cir.

1999); Judicial Watch, Inc. v. Nat'l Energy Pol’y Dev. Grp., 219 F. Supp. 2d 20, 32 (D.D.C.

2002) (noting “that relief can exist beyond the life of the committee . . .”). Accordingly, that

both parties are in agreement that the E-bike Partner and Agency Group is no longer active does

not, standing alone, prevent this claim from proceeding. That said, the Court is somewhat

skeptical that the injunction requested by Plaintiffs barring any future meetings of the disbanded

group lies within its power to decree. At least one court, when faced with a similar request,

determined that “there is no reason to enjoin further meetings” of a group alleged to have been

established in violation of FACA when the group had since been dissolved, mooting the issue.

12
As Defendants accurately point out, neither Plaintiffs’ original complaint (nor their
proposed supplemental complaint) requests this type of declaratory relief on their FACA claim.
See Defs.’ Reply at 10. The supplemental complaint does, however, request any “such additional
relief as the Court deems just and proper.” Supp. Compl. ¶ L. Because this sort of declaratory
relief has been recognized as an appropriate remedy for FACA violations in this Circuit, the
Court concludes it is an appropriate remedy to consider here. See, e.g., Physicians Comm. for
Responsible Med. v. Glickman, 117 F. Supp. 2d 1, 5 (D.D.C. 2000) (awarding declaratory relief
in the form of a statement that the agency failed to comply with FACA, even where the
committee had since disbanded and released all pertinent records); Byrd v. U.S. E.P.A., 174 F.3d
239, 244 (D.C. Cir. 1999) (awarding declaratory relief as it “would afford [P]laintiff some
relief.”).

36
See W. Org. of Res. Councils v. Bernhardt, 412 F. Supp. 3d 1227, 1244 (D. Mont. 2019). And

Plaintiffs’ suggestion that the E-bike Group’s illegal meetings (or that of a similar group) could

resume appears highly unlikely, given that the NPS has promulgated the Final Rule on e-bikes

(as have the other land management bureaus within the Department of the Interior) meaning

there would be no reason for the group to reconvene. Defs.’ MTD Reply at 14. However, the

Court need not conclusively reach this issue because relief for Plaintiffs remains available on

alternative grounds.

The D.C. Circuit has held that a claim for declaratory relief under FACA also remains

viable—and thus the claim live— even after the termination of the group in question. Byrd, 174

F.3d at 244; see also Cummock, 180 F.3d at 282 (holding that a declaratory judgment can be an

appropriate remedy for a FACA violation). This is because a declaratory judgment can then be

used by plaintiffs as “ammunition for [their] attack on the Committee's findings.” Glickman, 117

F. Supp. 2d at 5 (internal quotation marks and citation omitted)); see also NAACP Legal Def. &

Educ. Fund, Inc. v. Barr, No. 20-cv-1132, 2020 WL 5833866, at *9 (D.D.C. Oct. 1, 2020)

(granting declaratory relief as “[Plaintiff] can point to the Commission's imbalance and failure to

satisfy FACA's procedural requirements in challenging the report or future agency actions.”)

(emphasis added); Ctr. for Arms Control & Non-Proliferation v. Pray, 531 F.3d 836, 839 n*

(D.C. Cir. 2008) (noting that a declaration of the Plaintiffs’ legal rights “could form the basis of

an injunction against the [Defendants], which would redress [their] claimed injury”). Here,

Plaintiffs’ request for declaratory relief stating that the E-bike Group violated FACA could

provide them with the same sort of “ammunition” to attack NPS’s resultant e-bike policies,

including the Final Rule. Accordingly, because the Court remains able to provide this

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declaratory relief, Plaintiffs’ FACA claim is not moot, and supplementation is not futile. 13 The

Court grants Plaintiffs leave to add their FACA claim in full.

e. Plaintiffs’ Motion to Complete or Supplement the AR Regarding Their FACA Claim

The continued live nature of Plaintiffs’ FACA claim means that one more pending

motion warrants this Court’s attention. Prior to the motion to dismiss briefing, Plaintiffs filed a

Motion to Complete or Supplement the Administrative Record (“Pls.’ Supp. Mot.”), ECF No. 11,

contending that “three key documents” must be added to the AR in support of their FACA claim.

Pls.’ Supp. Mot. at 3. Defendants oppose the motion, arguing that because the three requested

documents were created after the Smith Directive was issued they are post-decisional and need

not be included in the current AR. Defs.’ Opp’n to Pls.’ Mot. to Supp. the AR (“Defs.’ Supp.

Opp’n”) at 2–3. Plaintiffs retort that Defendants misunderstand the nature of their independent

FACA claim, which they assert targets the decision to host the FACA-violating E-Bike Group

meetings generally, not simply the issuance of the Smith Directive following the meetings. Pls.’

Reply to Defs.’ Opp’n to Pls.’ Supp. Mot. at 4, ECF No. 17. In short, the parties’ disagreement

hinges on a dispute over the proper scope of Plaintiffs’ now supplemented FACA claim. As a

result, given the recent developments in this case, the Court finds that a ruling on this motion

would be premature and perhaps unnecessary. It appears highly likely that the Court’s grant of

13
Defendants also argue that Plaintiffs’ FACA claim “is dependent on a challenge to the
[Smith Directive]” and that because the Final Rule went through notice and comment any FACA
deficiencies present in the original policy have since been cured. Defs.’ MTD at 11. They
provide no authority for this proposition, likely because as far as this Court can tell, this issue has
not been reached by any court. Given that Plaintiffs remain able to argue that as a result of this
alleged FACA violation the integrity of NPS decisionmakers was compromised, which could
have been codified in the Final Rule, this Court’s declaratory relief would still provide
“ammunition” that could be used to attack the NPS’s e-bike rule in its final form. See Glickman,
117 F. Supp. 2d at 5 (“How effective such ammunition [in the form of declaratory relief] will be
is not for this Court to say.”).

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leave to Plaintiffs to file their supplemental complaint has mooted or at least substantially

changed the current posture of this issue. Indeed, in opposing this motion Defendants conceded

that the three documents in dispute could likely be included in an AR compiled to challenge the

Final Rule, as will now be required. See Defs.’ Supp. Opp’n at 13–14 (“If and when Plaintiffs do

file a suit about the. . . [F]inal [R]ule, then the non-deliberative October emails may belong in the

administrative record for that case.”). Accordingly, the Court denies this motion without

prejudice at this time.

f. Prudential Mootness

Defendants argue in their motion to dismiss that to the extent any claims survive the

Court’s constitutional mootness analysis, they must be dismissed under the doctrine of prudential

mootness. Defs.’ MTD at 15–16. The Court disagrees, and finds that the application of the

prudential mootness doctrine here would be an inappropriate exercise of the Court’s

discretionary equitable powers.

Prudential mootness concerns a court’s discretion to decline to grant equitable relief.

Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1019–20 (D.C. Cir. 1991). For “[e]ven when a

case is not moot in the Article III sense, it will sometimes be ‘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.’” Gordon v. Holder, 85 F. Supp. 3d 78, 81–82

(D.D.C. 2015) (quoting Chamber of Commerce of U.S. v. U.S. Dep’t of Energy, 627 F.2d 289,

291 (D.C. Cir. 1980)). Prudential mootness is typically applied “[w[here it is uncertain that

declaratory relief will benefit the party alleging injury” or to avoid a “constitutional issue of first

impression.” Penthouse Int’l., 939 F.2d at 1020. Neither category properly applies here. There

is no unique outstanding constitutional question, and while Plaintiffs’ do request declaratory

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relief, they have several available paths to meaningful relief. As a result, this case is not one

where such a use of this Court’s discretion to withhold declaratory relief is justified. The Court

therefore declines to apply the prudential mootness doctrine to the case at hand.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Stay Pending Rulemaking, ECF No.

10, is DENIED AS MOOT; Plaintiffs’ Motion for Leave to File Surreply, ECF No. 18, is

DENIED AS MOOT; Plaintiffs’ Motion to Modify Briefing Schedule, ECF No. 20, is

DENIED; Defendants’ Motion to Dismiss, ECF No. 21, is DENIED; Plaintiffs’ Motion for

Leave to File Supplemental Complaint, ECF No. 25, is GRANTED; and Plaintiffs’ Motion to

Complete or Supplement the Administrative Record, ECF No. 11, is DENIED WITHOUT

PREJUDICE. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: March 30, 2021 RUDOLPH CONTRERAS
United States District Judge

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