Summary of a Recent
Judicial
Development in
Environmental Law
Appeal in NEPA Action Dismissed as Moot
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884 (10th Cir. 2008), the Tenth Circuit Court of Appeals dismissed an appeal as moot because the underlying controversy had been terminated and no exceptions to mootness applied.
Background
Environmental organizations brought an action challenging the Bureau of Land Management's (BLM) sale of oil and gas mineral leases on public lands in a grasslands area, alleging violations of the National Environmental Policy Act of 1969 (NEPA) and the Federal Land Policy and Management Act of 1976 (FLPMA). Id. at 886-87. The district court denied their request for declaratory and injunctive relief. Id. They appealed, and the defendants moved to dismiss the appeal as moot because the leases had been terminated. Id. at 887.
Arguments
The BLM argued that the appeal was moot because it had terminated the leases in question for nonpayment, leaving no case or controversy at issue and no meaningful grounds for relief. Id.
Appellants argued that their claims were not moot and that a controversy still existed, because nothing has mooted their claims that the BLM failed to comply with NEPA. Id. at 890. They also argued that certain BLM activities related to that claim were the "final agency actions" that they were contesting, rather than the oil and gas leases. Id. They further argued that there was no reason to believe that the BLM's alleged NEPA violations would not recur, so the BLM should be enjoined from using its flawed lease process in the future (i.e., they sought to apply the exception to mootness that applies when a case is "capable of repetition, yet evading review"). Id. Appellants also argued that a voluntary cessation of a challenged action would not moot the case unless it was absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur and claimed that the BLM had failed to carry its burden of demonstrating that lease sales would not continue. Id.
Analysis and Holdings
The court found that the appellants' claims rested directly on the lease sale and leases issued in conjunction with the sale, and then considered whether the claims were moot. Id. at 892. One exception to a claim of mootness is a defendant's voluntary cessation of an alleged illegal practice which the defendant is free to resume at any time, and another exists when cases are "capable of repetition, yet evading review." Id. at 892. The court found no evidence that indicated that the BLM's termination of the leases constituted a "voluntary cessation" of illegal conduct made in an effort to evade judicial review or avoid judgment by temporarily altering questionable behavior; rather, the leases were terminated for non-payment by a third party. Id. at 893. The court also pointed out that the "capable of repetition, yet evading review" exception only arises when the duration of the challenged action is too short to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subjected to the same action again. Id. The appellants failed to argue the first element, and the court reasoned that even if it were met, the parties could not be subject to the same action again because the leases underlying this action had been terminated. Id. at 893-94. Therefore, the court granted the BLM's motion and dismissed the appeal. Id. at 894.
The case was decided on October 7, 2008.