United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2005 Decided May 31, 2005
No. 03-5345
SPIRIT OF THE SAGE COUNCIL, ET AL.,
APPELLEES
v.
GALE A. NORTON, SECRETARY, US DEPARTMENT OF THE
INTERIOR, ET AL.,
APPELLEES
COALITION FOR HABITAT CONSERVATION, ET AL.,
INTERVENORS
Consolidated with
04-5262, 04-5263, 04-5264
Appeals from the United States District Court
for the District of Columbia
(No. 98cv01873)
Ronald M. Spritzer, Attorney, U.S. Department of Justice,
argued the cause for federal appellants. With him on the briefs
was Andrew C. Mergen, Attorney.
Robert D. Thornton argued the cause for intervenors. With
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him on the briefs were John J. Flynn, III, Steven P. Quarles, J.
Michael Klise, and Thomas R. Lundquist, Benjamin S. Sharp,
Guy R. Martin, and Donald C. Baur.
Eric R. Glitzenstein argued the cause for appellees The
Humane Society of the United States, et al. With him on the
brief was Katherine A. Meyer.
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The Spirit of the Sage Council, et
al., sued the Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS), challenging the Services’
jointly-issued “No Surprises Rule” on both substantive and
procedural grounds. When the FWS subsequently promulgated
the closely related “Permit Revocation Rule,” the Council
amended its complaint to contest that Rule as well.
In the orders under review, the district court held the FWS
had not provided an adequate opportunity for the public to
comment upon the Permit Revocation Rule, as required by the
Administrative Procedure Act, 5 U.S.C. § 553. Although the
district court did not reach the merits of the Council’s challenge
to the No Surprises Rule, the court held that Rule was
“sufficiently intertwined with the [Permit Revocation Rule] that
it must also be remanded to the agency for consideration as a
whole.” Spirit of the Sage Council, et al. v. Norton, 294 F.
Supp. 2d 67, 91 (2003). The district court further ordered the
FWS and the NMFS to complete the proceedings on remand
within one year and enjoined the Services from applying the No
Surprises Rule in the meantime.
3
On appeal the Services do not contest the district court’s
conclusion that the Permit Revocation Rule was procedurally
defective. Rather, they argue the interim suspension of the No
Surprises Rule and the one-year deadline for repromulgation of
the Permit Revocation Rule exceeded the court’s authority under
the APA.
The Council contends these appeals are moot because the
Services have fully complied with the district court’s orders.
We agree with the Council and therefore dismiss these appeals
and vacate the orders under review pursuant to United States v.
Munsingwear, Inc., 340 U.S. 36, 40 (1950).
I. Background
In 1982 the Congress amended the Endangered Species Act
to authorize the Secretaries of the Interior and of Commerce,
who delegated this authority to the FWS and the NMFS,
respectively, to permit the “taking [of an endangered or
threatened species] otherwise prohibited by [the Act] if such
taking is incidental to, and not the purpose of, the carrying out
of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B). An
applicant for a so-called incidental take permit (ITP) must
submit a habitat conservation plan (HCP) demonstrating to the
satisfaction of the Secretary that:
(i) the taking will be incidental; (ii) the applicant will, to the
maximum extent practicable, minimize and mitigate the
impacts of such taking; (iii) the applicant will ensure that
adequate funding for the [HCP] will be provided; [and] (iv)
the taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild[.]
Id.
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In the first decade this procedure was available the Services
issued only 14 ITPs. Hoping to encourage more private
landowners to enter into HCPs, the Services developed their “No
Surprises” policy, which provided that
under no circumstances, including extraordinary
circumstances, shall an HCP permittee who is abiding by
the terms of their [sic] HCP be required to provide a greater
financial commitment or accept additional land use
restrictions on property available for economic use or
development.
Notice of Availability of Final Handbook for Habitat
Conservation Planning and Incidental Take Permitting Process,
61 Fed. Reg. 63,854, 63,857 (Dec. 2, 1996).
The new policy had the intended effect. “[B]y September
30, 1998, the Services had issued 243 incidental take permits,
and [as of March 1999] approximately 200 HCPs [were] under
development.” Notice of Availability of a Draft Addendum to
the Final Handbook for Habitat Conservation Planning and
Incidental Take Permitting Process, 64 Fed. Reg. 11,485 (March
9, 1999). The new policy was later codified as the No Surprises
Rule. See 63 Fed. Reg. 8859 (Feb. 23, 1998).
The Council brought suit in July 1998, claiming, among
other things, the No Surprises Rule violates the ESA “[b]y
precluding the Services from making changes to ITPs/HCPs
which may be necessary to ensure the survival and/or recovery
of endangered and threatened species.” The Coalition for
Habitat Conservation and other organizations representing
permit-holders intervened in support of the Services.
In June 1999, while this litigation was underway, the FWS
adopted the Permit Revocation Rule, 64 Fed. Reg. 32,706 (June
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17, 1999), which provides that an ITP containing an assurance
of no surprises may be revoked in the event of unforeseen
circumstances that will “appreciably reduce the likelihood of the
survival and recovery of the species in the wild,” 16 U.S.C. §
1539(a)(2)(B)(iv), if the Service is not otherwise able to avert
the jeopardy to the species, 50 C.F.R. §§ 17.22(b)(8) &
17.32(b)(8). Although the NMFS did not adopt a similar rule,
it joined the FWS in arguing before the district court that the
Permit Revocation Rule was not a modification of the No
Surprises Rule, but a mere clarification of how “the Services’
obligations under ... the ESA would be applied to revoke an
HCP permit.” Federal Defendants’ Reply Memorandum In
Support of Cross-motion for Summary Judgment at 9. The
Council then amended its complaint to challenge the Permit
Revocation Rule as well.
After rejecting the Services’ arguments that the Council
lacked standing to bring a facial challenge to the No Surprises
Rule and that the issue was not ripe for review, the court went
on to address, and to uphold on the merits, the Council’s
procedural claim that the FWS had failed to provide proper
notice and an adequate opportunity for public comment before
promulgating the Permit Revocation Rule, as required by § 553
of the APA. The district court accordingly vacated and
remanded the Permit Revocation Rule, which decision the
Services have not appealed.
Without purporting to reach the Council’s substantive
challenge to the No Surprises Rule, the district court further
concluded that Rule was “sufficiently intertwined with the
[Permit Revocation Rule] that it must also be remanded to the
agency for consideration as a whole with the [Permit Revocation
Rule].” 294 F. Supp. 2d at 91. The district court later issued an
order requiring the Services to complete “all proceedings
remanded by the Court[]” within one year of the date on which
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they were remanded and, “pending completion of the proceeding
on remand ... [to] refrain from approving new ITPs or related
documents containing ‘No Surprise’ assurances.”
After this court denied the Services’ motion for a stay
pending appeal, the FWS solicited public comment on both the
Permit Revocation Rule and its relationship to the No Surprises
Rule, as ordered by the district court. See Proposed Rule,
Endangered Species Act Incidental Take Permit Revocation
Regulations, 69 Fed. Reg. 29,681, 29,683 (May 25, 2004). On
December 10, 2004 the FWS repromulgated the Permit
Revocation Rule without substantial change. See Final Rule, 69
Fed. Reg. 71,723.
II. Analysis
The Council argues these appeals are moot because it is
now “impossible for the court to grant any effectual relief
whatever” to the appellants, Beethoven.com LLC v. Librarian of
Congress, 394 F.3d 939, 950 (D.C. Cir. 2005); that is, having
adhered to the procedure required by the district court and
repromulgated the Permit Revocation Rule, the Services are no
longer prohibited from issuing ITPs containing no-surprise
assurances.
The Services, on the other hand, maintain this court can still
grant effective relief because “the challenged order has ongoing
effects” upon the further proceedings required to resolve this
case. In the alternative the Services argue these appeals are not
moot because the harm of which they complain is one of those
“capable of repetition, yet evading review.” So. Pac. Terminal
Co. v. ICC, 219 U.S. 498, 515 (1911).
As for continuing effects, we note again that the Services do
not challenge the portion of the district court’s order vacating
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and remanding the Permit Revocation Rule; we therefore do not
consider whether allowing the FWS to recall the new version of
that Rule would provide it any redress.* Insofar as the district
court suspended and remanded the No Surprises Rule and set a
deadline for the completion of the proceedings on remand, its
orders were the functional equivalent of a preliminary injunction
designed to expedite the court’s further review of the No
Surprises Rule while preserving the status quo in the interim.
And “an appeal from an order granting a preliminary injunction
becomes moot when, because of the defendant’s compliance or
some other change in circumstances, nothing remains to be
enjoined through a permanent injunction.” People for the
Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 421
(D.C. Cir. 2005). That is precisely the situation here; the
Services have completed the required rulemaking. The orders
under review require nothing more of them, and hence they have
resumed issuing ITPs containing no-surprise assurances.
The Services argue the district court’s ruling nonetheless
has a continuing effect because it “provides [the Council] with
an opening to argue that the new comments [concerning the
proposed repromulgation of the No Surprises Rule] -- and
FWS’s responses or lack thereof -- should be considered in the
district court’s ongoing review of the [No Surprises] Rule.” The
Council, however, has not argued here, and at oral argument
*
The Intervenors devote a single footnote in their brief to
contesting that ruling but, as we stated in Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en banc), “[w]e
need not consider cursory arguments made only in a footnote.” If we
were to consider their argument, however, we would be hard pressed
to see why our holding the district court erred in vacating the original
version of the Rule would provide the Intervenors any relief inasmuch
as the FWS apparently has no intention of recalling the newly
promulgated version of that Rule.
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represented that it will not argue in the district court, that the
Services failed fully to comply with the orders under review,
including the requirement to reconsider the No Surprises Rule
“in tandem with the ... [Permit Revocation Rule],” 294 F. Supp.
2d at 91. Although the Council may yet argue the No Surprises
Rule and the Permit Revocation Rule are inconsistent with one
another, the orders under review did not provide the Council
with that opening; the Council has been making that argument
ever since the Permit Revocation Rule was first adopted, see,
e.g., Plaintiffs’ Statement of Material Facts That Are Not In
Genuine Dispute at 18 (referring to “the tension between the
potential for permit revocation ... in response to unforseen [sic]
circumstances and the No Surprises rule”), and nothing in the
orders makes that argument any more or any less persuasive.
Finally, the Services argue there is a continuing effect
because a favorable decision by this court could significantly
affect the amount of attorneys’ fees awarded to the Council;
specifically, we are told, if the Council obtains “no further relief
concerning the [No Surprises Rule, then] the district court would
be required to eliminate from the fee award all time spent
litigating the [No Surprises Rule] that is distinct from time
litigating the [Permit Revocation Rule].” But the Supreme
Court has squarely rejected this theory: An “interest in
attorney’s fees is ... insufficient to create an Article III case or
controversy where none exists on the merits of the underlying
claim.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990).
We therefore proceed to consider whether the present
controversy falls within the exception to mootness for matters
“capable of repetition, yet evading review.” So. Pac. Terminal
Co., 219 U.S. at 515. For an injury to be deemed capable of
repetition, “there must be a ‘reasonable expectation’ or
‘demonstrated probability’ that the same controversy will recur
involving the same complaining party.” Murphy v. Hunt, 455
9
U.S. 478, 482 (1982).
The question is, what does it mean for “the same
controversy” to recur? The level of generality with which one
describes the controversy will often determine the answer. The
inquiry in this case is much simplified, however, because even
the Services’ framing of the controversy shows it is not at all
likely to recur. According to the Services, the district court
exceeded its authority by suspending and remanding the No
Surprises Rule without having held it was either procedurally or
substantively defective -- the court held merely that it was
“intertwined with the [defectively promulgated Permit
Revocation Rule],” 294 F. Supp. 2d at 91 -- and by imposing a
deadline for repromulgating the latter Rule. All these measures
appear, however, to have stemmed directly from the FWS’s
initial promulgation of the Permit Revocation Rule during the
pendency of this litigation over the No Surprises Rule, and all
were evidently aimed at minimizing the delay occasioned
thereby. The orders under review therefore do not bespeak a
belief on the part of the district court that it is generally
authorized to suspend presumptively valid rules or to dictate the
Services’ priorities. Although a recurrence of the peculiar
circumstances that elicited the orders is, of course, a theoretical
possibility, see Beethoven.com LLC, 394 F.3d at 951, as a
practical matter the probability of their recurring is too low to
warrant our deciding the issues presented when no relief can be
afforded.
The Intervenors, for their part, argue that the district court’s
threshold rulings -- that the Council has standing and that its
facial challenge to the No Surprises Rule is ripe for resolution --
are alone sufficient to keep these appeals from being moot. The
doctrines of standing, ripeness, and mootness, however, all
derive from the “case or controversy” requirement of Article III.
See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (standing);
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Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803,
808 (2003) (ripeness); Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 180 (2000) (mootness). If any
one of them is not satisfied, then the court is without jurisdiction
over the suit and has no occasion -- indeed, may have no
authority -- to consider the others. See Nat’l Kidney Patients
Ass’n v. Sullivan, 902 F.2d 51, 54 (D.C. Cir. 1990) (dismissing
interlocutory appeal as moot without reaching argument that
district court lacked subject-matter jurisdiction). Because the
present appeals are clearly moot, we do not address whether the
Council had standing to bring a facial challenge to the No
Surprises Rule when it did and whether that claim was then ripe
for review.
III. Conclusion
We hold these interlocutory appeals no longer present a live
controversy. Therefore, we dismiss them as moot, vacate the
orders under review, see Munsingwear, 340 U.S. at 40, and
remand the case for further proceedings before the district court.
So ordered.