United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2005 Decided November 4, 2005
No. 03-5077
THE FUND FOR ANIMALS, INC., ET AL.,
APPELLANTS
v.
MATTHEW J. HOGAN, ACTING DIRECTOR, UNITED STATES
FISH AND WILDLIFE SERVICE, ET AL.,
APPELLEES
Consolidated with
04-5077
Appeals from the United States District Court
for the District of Columbia
(No. 01cv02078)
Jonathan R. Lovvorn argued the cause for appellants. With
him on the briefs was Eric R. Glitzenstein.
R. Justin Smith, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Andrew C. Mergen and John A. Bryson, Attorneys. David C.
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Shilton and Greer S. Goldman, Attorneys, entered appearances.
Before: GINSBURG, Chief Judge, and TATEL and BROWN,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The Fund for Animals petitioned
the U.S. Fish and Wildlife Service to list as endangered or
threatened the trumpeter swans inhabiting Wyoming, Montana,
and Idaho. The Service denied the petition and thereafter
authorized a limited “take” of trumpeter swans incidental to the
2001 and 2002 hunting seasons for tundra swans in Utah and
Nevada. The Fund sued the Service, claiming these decisions
variously violated the Endangered Species Act (ESA), the
Adminstrative Procedure Act (APA), the National
Environmental Policy Act (NEPA), and the Migratory Bird
Treaty Act (MBTA). The district court rejected the Fund’s
claims, see Fund for Animals v. Williams, 311 F. Supp. 2d 1
(D.D.C. 2004) (ESA claim); Fund for Animals v. Williams, 246
F. Supp. 2d 27 (D.D.C. 2003) (NEPA and MBTA claims); Fund
for Animals v. Williams, 245 F. Supp. 2d 49 (D.D.C. 2003)
(APA claim), and the Fund now appeals.
The Service contends all the Fund’s claims are now moot
and we agree. We therefore affirm the district court’s order
dismissing as moot the Fund’s claim under the ESA, and we
dismiss as moot the Fund’s claims under the APA, the NEPA,
and the MBTA. Finally, we vacate the orders under review
pursuant to United States v. Munsingwear, Inc., 340 U.S. 36, 40
(1950).
3
I. Background
The trumpeter swan is the world’s largest waterfowl. In the
19th century hunters nearly eliminated the trumpeter swan
population in the United States but, pursuant to a treaty between
the United States and Canada, the swans have been protected for
nearly 80 years. See Convention for the Protection of Migratory
Birds, U.S.-Gr. Brit. (acting for Canada), Aug. 16, 1916, 39 stat.
1702, 1702 (1916) (bilateral treaty generally prohibiting the
hunting of “Anatidae,” the family to which the trumpeter swan
belongs); 16 U.S.C. §§ 703-712 (implementing the treaty). For
the purpose of managing trumpeter swans in the United States,
the Fish and Wildlife Service divides them into “Pacific Coast,”
“Rocky Mountain,” and “Interior” populations. In 2000 there
were an estimated 3,975 trumpeter swans in the Rocky
Mountain population, of which fewer than 400 inhabited the
Greater Yellowstone “tri-state area” of Wyoming, Montana, and
Idaho.
Until recently, the tri-state trumpeter swans were largely
nonmigratory. In 1992, however, after one particularly harsh
winter caused a significant number of deaths, the Service began
facilitating their seasonal migration to warmer climes via the
Pacific Flyway. Unfortunately, however, trumpeter swans
migrating through the Pacific Flyway are easily mistaken for
tundra swans, a physically similar but vastly more populous
species. Because the hunting of tundra swans is legal in several
of the States in the Pacific Flyway, the Service anticipated that
each year hunters of tundra swans would accidentally kill a
certain number of trumpeter swans.
In 1995 the Service launched a five-year experiment with
the aim of fostering migration by trumpeter swans while
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simultaneously reducing the risk posed by hunters: Hunting
trumpeter swans would remain illegal, but the Service would
accept a certain “take,” or number of accidental deaths, among
trumpeter swans in Utah and Nevada; if and when the specified
number of trumpeter swans was killed, the Service and the State
would terminate the hunting of tundra swans for that season.
A. The Fund’s Listing Petition
Any “interested person” may petition the Secretary of the
Interior to list a “species” as endangered or threatened. 16
U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14; see also 16 U.S.C.
§ 1532(16) (“species” may be a “distinct population segment”).
“To the maximum extent practicable, within 90 days after
receiving [a] petition,” the Service must “make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted.” 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. §
424.14(b)(1). If the Service concludes in its 90-day finding that
the action requested in the petition may be warranted, then it
must “promptly commence a review of the status of the species
concerned.” 16 U.S.C. § 1533(b)(3)(A). Separately the ESA
authorizes the Secretary immediately to list a species facing
“any emergency posing a significant risk to the well-being of
[that] species.” 16 U.S.C. § 1533(b)(7).
In August 2000 the Fund petitioned the Service to list, on an
emergency and alternatively on a non-emergency basis, the tri-
state portion of the Rocky Mountain population as endangered
or threatened. See The Biodiversity Legal Foundation & The
Fund for Animals, “Petition for a Rule to List the Greater
Yellowstone (Tri-state) Breeding Population of the Trumpeter
Swan (Cygnus buccinator) as Threatened or Endangered” (Aug.
5
22, 2000). In September the Service replied in a two-page letter
stating, “The birds included in [the Fund’s] petition are not
recognized by the Service as a population,” and adding that the
Service did not “have listing funds currently available to initiate
work on a 90-day finding.”
The Fund then sued the Service in district court, claiming
the letter did not adequately explain why the Service was
denying the Fund’s request for an emergency listing of the tri-
state population and seeking an order requiring the Service to
fulfill the 90-day finding requirement of the ESA. Finding the
letter provided no “explanation as to why the Service does not
recognize the Tri-State swans as a population separate from the
[Rocky Mountain] swans,” 246 F. Supp. 2d at 36, the district
court entered a summary judgment for the Fund, remanding the
matter to the Service for elucidation.
In January 2003 the Service finally published the requisite
90-day finding in which it detailed why the tri-state trumpeter
swans were not a distinct population segment apart from the
Rocky Mountain population. First, the Service determined that
the tri-state swans were not “markedly separated from other
populations of the same taxon as a consequence of physical,
physiological, ecological, or behavioral factors.” 68 Fed. Reg.
4221, 4223-25 (Jan. 28, 2003). Second, it found they were not
“delimited by international governmental boundaries within
which differences in control of exploitation, management of
habitat, conservation status or regulatory mechanisms exist that
are significant with regard to conservation of the taxon.” Id. at
4223, 4225-26. The tri-state trumpeter swans were therefore
part of the Rocky Mountain population, which had grown on
average by 4.8% per year from 1968 to 2000 and were neither
endangered nor threatened. See id. at 4228. The district court,
6
noting that the belated finding had provided “a coherent
statement of reasons for the Service’s conclusion that the Tri-
State Trumpeter swans are not a distinct population segment,”
311 F. Supp. 2d at 8, granted the Service’s motion to amend the
judgment and to dismiss as moot the Fund’s claim under the
ESA.
B. The 2001 Environmental Assessment
Deeming its experimental migration program of 1995 to
2000 a success, the Service decided to incorporate the program
into the regulations it issues each year to govern the hunting of
migratory birds. In 2001, therefore, the Service did an
environmental assessment (EA), see 40 C.F.R. §§ 1501.4(b)-(c),
1508.9, “to establish regulatory options and management
direction for Trumpeter and Tundra swans based on past
experience with the authorization of a limited take of Trumpeter
swans in the Pacific Flyway.” U.S. Fish and Wildlife Service,
Proposal to Establish Operational/Experimental General Swan
Hunting Seasons in the Pacific Flyway 3 (June 15, 2001).
Although the hunting of trumpeter swans remained illegal, the
2001 EA allowed for an accidental take of up to 15 birds -- five
in Nevada and ten in Utah. As in the experimental program, if
and when a quota was reached the Service and the relevant State
were to terminate the hunting season for tundra swans. The
Service also issued a Finding of No Significant Impact (FONSI),
see 40 C.F.R. § 1501.4(e), and therefore did not develop a full-
blown environmental impact statement (EIS) for its proposal.
The Service went on to incorporate the 2001 EA into its annual
migratory bird hunting framework regulations for 2001, see 66
Fed. Reg. 49,478, 49,482-485 (Sept. 27), and again for 2002, 67
Fed. Reg. 59,110, 59,114-115 (Sept. 19).
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Meanwhile, back in district court the Fund, referring to the
2001 EA, alleged the Service had “decid[ed] to establish a
permanent hunting season for Trumpeter swans,” in violation of
various statutes and treaties. First, the Fund claimed the Service
had violated § 706 of the APA by failing to provide the court
with the “whole record” upon which it had based the 2001 EA.
The district court denied the Fund’s motion to compel because
the Service had submitted “14 volumes containing more than
6,000 pages” and the Fund had failed to establish that “the
adminstrative record was [not] properly designated.” 245 F.
Supp. 2d at 57-58.
The Fund also claimed the Service had violated the NEPA
when it set the maximum accidental take of trumpeter swans
without first having compiled an EIS. The district court rejected
the Fund’s NEPA claim because it determined the Service had
in the EA “adequately considered and disclosed the
environmental impact of the Trumpeter swan quota” and
because -- adverting to the criteria set forth in 40 C.F.R. §
1508.27(b)(4)-(9) -- “the quota did not have highly controversial
or uncertain effects and was not likely to cause loss of historic
resources, establish a precedent, or adversely affect a threatened
species.” 246 F. Supp. 2d at 47-48.
Finally, the Fund claimed the 2001 EA violated the MBTA,
16 U.S.C. §§ 703-712, which implements several treaties
protecting migratory birds. The MBTA, the Fund argued, does
not permit the Service to balance the interests of hunters against
“the specific factors set forth in the MBTA, such as the
‘distribution, abundance, ... [and] breeding habits’ of Trumpeter
swan populations.” Amended Complaint at ¶ 147 (quoting 16
U.S.C. § 704(a)). The district court, upon concluding the
Service had given “due regard to the MBTA factors ... and did
8
not exceed [its] statutory authority in considering non-statutory
factors,” 246 F. Supp. 2d at 41, granted summary judgment in
favor of the Service.
In 2003, after the district court had disposed of the Fund’s
claims under the APA, the NEPA, and the MBTA, the Service
issued a new EA. See U.S. Fish and Wildlife Service, Proposal
to Establish Operational General Swan Hunting Seasons in the
Pacific Flyway (Aug. 5, 2003). The new EA, accompanied by
a new FONSI, became the basis for the provisions of the
framework regulations governing the hunting of tundra swans
during the 2003, 2004, and 2005 seasons. See 68 Fed. Reg.
55,784, 55,787 (Sept. 26, 2003); 69 Fed. Reg. 57,140, 57,149
(Sept. 23, 2004); 70 Fed. Reg. 55,666, 55,678 (Sept. 22, 2005).
Although the 2001 and 2003 EAs specify the same quotas for
Utah and Nevada, the 2003 EA includes data from the 2002
season and newly conditions the authorization of Utah’s tundra
swan hunting season upon a “Memorandum of Agreement”
between the Service and that State “to improve collection of
information on harvested swans.”
II. Analysis
The Service contends all the Fund’s claims, whether they
relate to the Fund’s 2000 listing petition or to the Service’s 2001
EA, are moot. The Fund, for its part, resists on both fronts and
seeks a ruling on the merits of all its claims.
A. The 2000 Listing Petition
The district court amended its judgment and dismissed as
moot the Fund’s claim under the ESA because the finding the
Service issued in January 2003 fully cured the defects of its
9
September 2000 letter, 311 F. Supp. 2d at 8. We review the
district court’s determination of mootness de novo. City of
Houston v. Dep’t of Hous. and Urban Dev., 24 F.3d 1421, 1426
(1994).
The Fund argues the 90-day finding did not supercede or
amend the earlier letter, which addressed the Fund’s petition to
“initiate emergency listing under section 1533(b)(7) of the
ESA.” Under the Fund’s theory, the Service conclusively
decided the issue of emergency listing in 2000, as evidenced by
the letter. The district court, by this account, erred when it
decided “retroactively [to] dismiss [the Fund’s] claim
concerning the Service’s September 2000 decision denying
emergency listing because an extra-record, post-hoc document
issued in January 2003 somehow cured the agency’s failure to
provide a coherent statement of reasons in September 2000.”
Moreover, the Fund points out that on its face the “90-day
finding does not purport to ‘repromulgate,’ ‘revise,’ cancel,
modify, or supercede the September 2000 emergency listing
decision in any way.”
In response the Service contends that a “negative
determination on the 90-day finding necessarily meant that
emergency listing was not warranted.” In addition, the Service
argues that although it responded promptly to the Fund by letter,
it was under no obligation to respond at all because the
“statutory and regulatory provisions addressing emergency
listing do not provide for petitions.” See 16 U.S.C. §
1533(b)(3)(A); 50 C.F.R. § 424.14.
Contrary to the Fund’s suggestion, the ESA clearly
establishes but a single petition process for listing a species as
endangered or threatened, see 16 U.S.C. § 1533(b)(3)(A); there
10
is no separate process in the ESA or its implementing
regulations for requesting an “emergency listing” as opposed to
a “non-emergency” listing. Although § 1533(b)(7) does permit
the Secretary to list a species based upon an “emergency posing
a significant risk to the well-being of [that] species,” that type of
listing is expressly committed to the Secretary’s “discretion,”
the exercise of which is not structured by any statutorily
prescribed criteria or procedures. The Fund therefore had no
statutory right to petition the Secretary for an emergency listing
under § 1533(b)(7), and no right to a decision meeting any
particular procedural or substantive standards. Insofar as the
Service’s letter of September 2000 addressed the Fund’s petition
for non-emergency listing, the district court did not err in
dismissing as moot the Fund’s claim because the letter was
superceded in full by the belated 90-day finding. This sequence
of events is analogous to the merger of a preliminary injunction
into a permanent injunction, upon which “an appeal from the
grant of [the] preliminary injunction becomes moot.” Grupo
Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527
U.S. 308, 314 (1999).
B. The 2001 EA
The Service contends the Fund’s claims under the APA, the
NEPA, and the MBTA are moot because the Service “relied on
the 2001 EA for two hunting seasons -- 2001-02 and 2002-03 --
and has subsequently relied on the 2003 EA.” The Fund
confirmed at oral argument that the “crux of [its] challenge was
to the [2001] EA.” Although the 2001 EA and the regulations
based thereupon are no longer in effect, the Fund argues its
present dilemma is one “capable of repetition, yet evading
review.” So. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515
(1911). In particular, the Fund maintains “the Service’s
11
approach virtually guarantees that their EAs will ‘systematically
evade review,’ since at any point in the judicial review process,
the agency can simply issue a new EA and declare ‘moot’ any
legal challenge.”
Under the law of this circuit, regardless whether the present
situation is “capable of repetition,” it is not one “evading
review.” As a general rule, two years is enough time for a
dispute to be litigated. See LaRouche v. Fowler, 152 F.3d 974,
978 (D.C. Cir. 1998); see also So. Pac. Terminal, 219 U.S. at
514-16 (duration of less than two years insufficient to litigate
dispute).
The 2001 EA was issued in June of that year and remained
in effect until August 2003, or somewhat more than two years.
The 2003 EA has already been in effect for more than two years
and has served as the basis for the relevant provisions of the
2003, 2004, and 2005 regulations; the 2003 EA will therefore be
in effect for at least three years. Moreover, the Fund has offered
no evidence for its suggestion that the Service is cynically
inclined to “moot any legal challenge” the Fund may mount in
the future. Because the 2001 EA has long since been succeeded
and the situation of which the Fund complains, should it recur,
is not one likely to evade review, we dismiss as moot the Fund’s
claims under the APA, the NEPA, and the MBTA.
Finally, the Service argues we should not vacate the orders
under review because this case was mooted as a “result of events
within the control of ... the Fund.” In particular, the Service
contends the Fund should have sought expedited review in this
court during the six months between the district court’s ruling
and the issuance of the 2003 EA. Be that as it may, “we have
repeatedly held that we will not consider the possibility of
12
expedited review in determining mootness.” Hinckley v. United
States, 163 F.3d 647, 651 n.8 (1999).
The Service also faults the Fund for not severing its claims
under the ESA from those under the APA, the NEPA, and the
MBTA for purposes of appellate review; the pendency in the
district court of the Service’s motion for reconsideration of the
ESA claim then would not have delayed our consideration of the
Fund’s other claims. As the Fund points out, however, it did
attempt to appeal “the MBTA and NEPA claims that were not
subject to the [Service’s] motion to amend the judgment as to
the ESA claims.” Rather than separately entertain the non-ESA
claims, however, the court held them in abeyance pending
resolution of the Service’s motion. The Fund therefore did not
sit on its hands, as the Service suggests.
Because the Service mooted the claims then pending before
us, the Fund should not be prejudiced by orders that have not
been reviewed on their merits. Indeed, vacatur is “commonly
utilized in precisely this situation to prevent a judgment,
unreviewable because of mootness, from spawning any legal
consequences.” Munsingwear, 340 U.S. at 41.
III. Conclusion
In sum, none of the Fund’s claims presents a live
controversy. We therefore affirm the order of the district court
amending its judgment and dismissing as moot the Fund’s claim
under the ESA, dismiss as moot the Fund’s claims under the
APA, the NEPA, and the MBTA, and vacate the orders of the
district court relating thereto.
So ordered.