Alaska Center for the Env't v. U.S. Forest Serv.

• Citation: 189 F.3d 851
• Decision Date: 07 September 1999
• Docket Number: No. 97-36128,97-36128
• Parties: (9th Cir. 1999) ALASKA CENTER FOR THE ENVIRONMENT; ALASKA WILDLIFE ALLIANCE, Plaintiffs-Appellants, v. U.S. FOREST SERVICE; JOHN C. DORIO, District Ranger, Chugach National Forest, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 851

189 F.3d 851 (9th Cir. 1999)

ALASKA CENTER FOR THE ENVIRONMENT; ALASKA WILDLIFE ALLIANCE, Plaintiffs-Appellants, v. U.S. FOREST SERVICE; JOHN C. DORIO, District Ranger, Chugach National Forest, Defendants-Appellees.

No. 97-36128

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 3, 1999

Filed September 7, 1999

[Copyrighted Material Omitted] Patrick Lavin and Valerie Brown, Trustees for Alaska, Anchorage, Alaska, for the appellants.

Ethan G. Shenkman, Attorney, Department of Justice, Washington, D.C., for the appellees.

Appeal from the United States District Court for the District of Alaska. James K. Singleton, Chief District Judge, Presiding. D.C. No. CV-96-00293-JKS.

Before: Procter Hug, Jr., Chief Judge, Stephen S. Trott and A. Wallace Tashima, Circuit Judges.

HUG, Chief Judge:

At issue in this appeal is whether the U.S. Forest Service complied with the National Environmental Policy Act (NEPA), 42 U.S.C. S 4321-4370, when it classified one-year commercial helicopter activities as "categorical exclusions" and issued a special use permit without conducting an Environmental Assessment (EA) or Environmental Impact Statement (EIS). However, before reaching this question we must first decide whether this case is rendered moot because the challenged permit has now expired. We have jurisdiction pursuant to 28 U.S.C. S 1291 and, concluding the case is not moot, we AFFIRM.

I. BACKGROUND

The Alaska Center for the Environment (ACE) challenges the Forest Service's decision to issue a one-year special use permit to Chugach Powder Guides, Inc. (Powder Guides) authorizing helicopter-guided skiing and hiking operations. Under NEPA, federal agencies are required to prepare either an EA or EIS for major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. S 4332(2)(C). Pursuant to Council of Environmental Quality (CEQ) regulations, each agency is required to identify categories of actions which do not individually or cumulatively have a significant effect on the human environment. 40 C.F.R. SS 1507.3(b)(2)(ii) &1508.4. These actions are classified as "categorical exclusions" for which neither an EA or EIS is required. 40 C.F.R. S 1508.4. Forest Service regulations provide that approval, modification, or continuation of minor short-term (one-year or less) special uses of National Forest land "are categorically excluded." Forest Service Handbook 1909.15, 30.3(1)(a)-(b).

In 1997, the Forest Service issued the Powder Guides' special use permit, which authorized commercially-guided helicopter skiing and hiking tours in several areas of the Chugach National Forest in Alaska for one year. The Forest Service classified the permit activity as falling within its categorical exclusion for minor short-term special uses of National Forest lands and therefore, did not conduct an EA or EIS. Under Forest Service policy, one-year special use permits are not subject to NEPA and can be renewed for up to one additional year. Thereafter, the permit holder must seek a five-year special use permit accompanied by either and EA or EIS. In 1998, Powder Guides was granted a one-year extension to its original permit. ACE challenged the issuance of the original one-year permit, arguing that NEPA required the Forest Service to conduct an EA or an EIS before issuing the Powder Guides permit because it was not properly within the categorical exclusion.¹ ACE sought both injunctive and declaratory relief. The district court granted summary judgment for the Forest Service on the grounds that the Forest Service properly relied on the categorical exclusion under NEPA and provided a reasonable explanation for doing so. Subsequent to the district court's decision, Powder Guides' extended permit expired. Thus the first question to address is whether the dispute has been rendered moot.²

II. DISCUSSION

A. Mootness

Mootness is a question of law reviewed de novo. Di Giorgio v. Lee (In re Di Giorgio), 134 F.3d 971, 974 (9th Cir. 1998). Generally, an action is mooted when the issues presented are no longer live and therefore the parties lack a legally cognizable interest for which the courts can grant a remedy. Murphy v. Hunt, 455 U.S. 478, 481 (1982); Arizonans for Official English v. Arizona, 520 U.S. 43, 45 (1997) (an actual controversy must be extant at all stages of review); Northwest Resource Info. Ctr., Inc. v. National Marine Fisheries Service, 56 F.3d 1060, 1069 (9th Cir. 1995). However, the Supreme Court has established an exception to the general principle of mootness for cases in which the challenged conduct is capable of repetition but evades review. Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975). The exception is limited to extraordinary cases where "(1) the duration of the challenged action is too short to allow full litigation before it ceases, and (2) there is a reasonable expectation that the plaintiffs will be subjected to it again." Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992).

In this case, the challenged permit has expired and therefore the issues regarding Powder Guides' permit are moot unless the issuance of a one-year permit falls within the repetition/evasion exception to the mootness doctrine.

1. Duration

In determining if an issue satisfies the repetition/evasion exception, we have recognized that "evading review" means that the "underlying action is almost certain to run its course before either this court or the Supreme Court can give the case full consideration." Miller v. California Pacific Med. Ctr., 19 F.3d 449, 453-54 (9th Cir. 1994). The Supreme Court held that 18 months was not enough time for complete judicial review. First Nat'l Bank v. Bellotti, 435 U.S. 765, 774 (1978). In Greenpeace Action, this court held that a regulation that was in effect for less than a year satisfied the exception because 12 months was not enough time for judicial review. 14 F.3d at 1329-30.³

The Forest Service contends that the exception does not apply because the one-year special-use permit was renewed for an additional year and two years is sufficient time to obtain judicial review. ACE asserts that the permit should not be re-characterized as a two-year permit based on the Forest Service's discretion to grant an extension because there may be situations in which the Forest Service does not grant the extension. For the purposes of deciding the mootness question, it is inconsequential whether we view the Powder Guides permit as a one-year or two-year permit. For even assuming that it is a two-year permit, conclude that the duration element of the exception is satisfied because the duration of the permit is too short to allow full litigation before the permit expires.

The Forest Service also argues that ACE could have avoided mootness by seeking expedited consideration of the appeal under Ninth Circuit Rules. Circuit Rule 27-12 allows a party to file a motion for expedited appeal for good cause which includes situations where, in the absence of expedited treatment, the appeal may become moot. Cir. Rule 27-12(3). In cases where the mootness exception has been found inapplicable because of plaintiff's failure to avail themselves of procedures to avoid mootness, the issue was whether plaintiff sought an injunction pending appeal. See Bunker Ltd. v. United States (In re Bunker Ltd. Partnership), 820 F.2d 308, 311 (9th Cir. 1987) (a party may not profit from the repetition/evasion exception "where through his own failure to seek and obtain a stay he has prevented" judicial review); Headwaters v. BLM, 893 F.2d 1012, 1015-16 (9th Cir. 1990); American Horse Protection Ass'n v. Watt, 679 F.2d 150, 151 (9th Cir. 1982). In this case, as the Forest Service's Motion to Dismiss admits, a stay or an injunction pending appeal would not have prevented the Powder Guides permit from expiring. Therefore, ACE seeking a stay would not have avoided mootness.

The Forest Service contends, however, that ACE should not be able to avail itself of the exception to the mootness doctrine when it did not take advantage of all mechanisms, including expedited review under circuit rules, to avoid mootness. There is no authority in this circuit for concluding that the repetition/evasion exception is inapplicable when the parties fail to seek expedited review under circuit rules. However, we have held the repetition/evasion exception inapplicable where the Federal Rules of Civil Procedure and Evidence were in place to protect against repetition. In De Massa v. United States (In re Grand Jury Proceedings ), 760F.2d 1490, 1492 (9th Cir. 1985), plaintiff refused to answer questions during grand jury proceedings and was held in contempt. Id. Upon appeal the case was found to be moot because the grand jury proceedings had concluded. Id. Plaintiff argued that the government intended to call him as a witness at trial, and therefore the capable of repetition but evading review exception applied. This court concluded that "although the dispute may arise again, it is not likely to escape review, as the parties can file pre-trial motions in limine and may also seek timely review from the appropriate adverse determinations." Id.

Arguably, circuit rules are like the rules of procedure and evidence and parties can take advantage of any or all of them to avoid mootness. However, in Grand Jury Proceedings, the challenged conduct was calling the plaintiff as a witness, which is conduct that is clearly governed by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The challenged conduct in this case, which is the issuance of helicopter permit without NEPA review, is not directly subject to the federal rules of evidence and procedure.

Issues of mootness often involve "highly individualistic . . . appraisal of the facts of each case" to determine if the doctrine applies. Charles A. Wright & Arthur R. Miller, 13A Federal Practice and Procedure S 3533 at 211-12 (2d ed....