Center for Food Safety v. Thomas Vilsack

FILED
NOT FOR PUBLICATION NOV 15 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CENTER FOR FOOD SAFETY; No. 11-16468
ORGANIC SEED ALLIANCE; SIERRA
CLUB; HIGH MOWING ORGANIC D.C. No. 3:10-cv-04038-JSW
SEEDS,

Plaintiffs - Appellants, MEMORANDUM *

THOMAS J. VILSACK,

Defendant - Appellee,

BETASEED, INC.; MONSANTO
COMPANY; SYNGENTA SEEDS, INC.;
AMERICAN CRYSTAL SUGAR
COMPANY,

Intervenor-Defendants -
Appellees.

CENTER FOR FOOD SAFETY; No. 11-16564
ORGANIC SEED ALLIANCE; SIERRA
CLUB; HIGH MOWING ORGANIC D.C. No. 3:10-cv-04038-JSW
SEEDS,

Plaintiffs - Appellees,

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.

THOMAS J. VILSACK,

Defendant,

and

BETASEED, INC.; MONSANTO
COMPANY; SYNGENTA SEEDS, INC.;
AMERICAN CRYSTAL SUGAR
COMPANY,

Intervenor-Defendants -
Appellants.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

Argued and Submitted October 24, 2012
San Francisco, California

Before: SCHROEDER, THOMAS, and McKEOWN, Circuit Judges.

The Center for Food Safety and other plaintiffs appeal the district court’s

dismissal of their case as moot. We affirm. Because the parties are familiar with

the history of this case, we need not recount it here.

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I

The district court properly concluded that it lacked jurisdiction because the

case was moot. In determining whether a case is moot, the “question is whether

there can be any effective relief.” Cantrell v. City of Long Beach, 241 F.3d 674,

678 (9th Cir. 2001) (internal quotation marks and citation omitted). “[D]efendants

in [National Environmental Policy Act] cases face a particularly heavy burden in

establishing mootness.” Id. The district court properly determined that the

government had satisfied its burden. The challenged permits have expired, and

there is no effective relief that the court could grant.

The Center argues that, although the permits have expired, a court can still

grant effective relief by, for instance, investigating the harms from the planting,

ordering the crops destroyed, taking other steps to mitigate harms such as

precluding later planting, or imposing safeguards. Most of those proposed actions

are beyond the power of the court to order. Further, such measures cannot provide

relief to the plaintiffs for the planting during the six-month period at issue,

particularly now that Roundup Ready sugar beets have been fully deregulated and

can be grown anywhere without a permit.

This case differs from others in which we have held that a court could grant

effective relief despite the cessation of activity. See, e.g., Neighbors of Cuddy

3
Mountain v. Alexander, 303 F.3d 1059, 1065-66 (9th Cir. 2002) (though logging

was complete, court could mitigate impact of challenged timber sale by, for

instance, ordering “the Forest Service to adjust future timber plans to compensate

for this allegedly unlawful one”); Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241,

1245 (9th Cir. 1988) (challenge to measures governing 1986 salmon fishing season

not moot when season ended because court could mitigate alleged overfishing by

allowing more fish to spawn in 1989 season). Here, there is no relevant ongoing

agency action comparable to the creation of future fishing quotas or timber plans.

This lawsuit concerns only the issuance of the permits, not the subsequent partial

or full deregulations. Even if the district court were to find the permits had been

improperly issued, it could not vacate the later deregulation on that basis. Thus,

any harm from the issuance of the permits has already occurred and cannot be

undone. Cf. Feldman v. Bomar, 518 F.3d 637, 643 (9th Cir. 2008).

The district court also properly concluded that this case does not fall within

the exception for disputes that are capable of repetition but evade review. This

exception applies when “(1) the challenged action is in its duration too short to be

fully litigated prior to cessation or expiration, and (2) there is a reasonable

expectation that the same complaining party will be subject to the same action

4
again.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007)

(internal quotation marks and citation omitted).

Here, as the Center concedes, there is no evidence in the record

demonstrating a reasonable expectation that the challenged conduct will recur.

III

The intervenors have also cross-appealed the district court’s partial denial of

their motions to intervene. We decline to reach this issue. Because the district

court properly dismissed this case as moot, any erroneous denial would be

harmless. Cf. Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1321-22

(9th Cir. 1997) (holding harmless district court’s erroneous denial of intervention

for the limited purpose of appeal from denial of class certification); Prete v.

Bradbury, 438 F.3d 949, 959-60 (9th Cir. 2006) (holding harmless erroneous grant

of intervention).

AFFIRMED.