Envtl. Protection Info. Center v. Pacific Lumber Co., PLAINTIFFS-APPELLEES

• Decision Date: 13 November 2000
• Docket Number: 99-16915,PLAINTIFFS-APPELLEES,Nos. 99-16042,DEFENDANTS-APPELLANTS,s. 99-16042
• Citation: 257 F.3d 1071
• Parties: (9th Cir. 2001) ENVIRONMENTAL PROTECTION INFORMATION CENTER, INC. AND SIERRA CLUB, INC.,, v. PACIFIC LUMBER COMPANY, SCOTIA PACIFIC HOLDING COMPANY AND SALMON CREEK CORPORATION,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1071

257 F.3d 1071 (9th Cir. 2001)

ENVIRONMENTAL PROTECTION INFORMATION CENTER, INC. AND SIERRA CLUB, INC., PLAINTIFFS-APPELLEES, v. PACIFIC LUMBER COMPANY, SCOTIA PACIFIC HOLDING COMPANY AND SALMON CREEK CORPORATION, DEFENDANTS-APPELLANTS.

Nos. 99-16042, 99-16915

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 13, 2000--San Francisco, California

Filed July 24, 2001

Brian Gaffney, Oakland, California, Brendan Cummings, and Sharon E. Duggan, Berkeley, California, for the plaintiffs-appellees.

Jared G. Carter, Frank Shaw Bacik, Carter, Behnke, Oglesby & Bacik, Ukiah, California and Edgar B. Washburn, David M. Ivester, Christopher J. Carr, Washburn, Briscoe & McCarthy, for the defendants-appellants.

Appeal From the United States District Court for the Northern District of California Marilyn Hall Patel, District Judge, Presiding D.C. No. CV-98-03129-MHP

Before: J. Clifford Wallace, Raymond C. Fisher, and Johnnie B. Rawlinson, Circuit Judges.

WALLACE, Circuit Judge:

The district court granted Pacific Lumber Company's (Pacific Lumber) motion to dismiss as moot the action brought by the Environmental Protection Information Center, Inc. (EPIC) and entered judgment. Pacific Lumber asks that we vacate (1) an order, filed after the case had become moot, outlining the district court's reasons for granting a preliminary injunction and (2) similar statements about the preliminary injunction contained in the opinion holding the case to be moot. EPIC does not dispute that its case against Pacific Lumber is moot; it asserts, however, that Pacific Lumber lacks standing to request vacatur of the district court's ultra vires statements because the final judgment was entirely in Pacific Lumber's favor. The district court had jurisdiction under 28 U.S.C. 1331, 2201, and 2202 and 16 U.S.C.§ 1540(c) and (g). We have jurisdiction to review the district court's final judgment pursuant to 28 U.S.C. § 1291. We have the authority to entertain petitioner's motion to vacate even though there is no longer an Article III case or controversy pursuant to 28 U.S.C. § 2106 and U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 21 (1994). We vacate the judgment and remand with instructions for the district court to vacate its statements on the merits of EPIC's case made after there was no longer an Article III case or controversy.

I.

On September 28, 1996, as part of the resolution of a dispute over the application of the Endangered Species Act (Act) to lands owned by Pacific Lumber, the federal government, the state of California, Pacific Lumber, and its parent company, MAXXAM Inc., entered into an agreement calling for (1) a moratorium on timber operations in 7500 acres of old growth forest in anticipation of the eventual purchase of those acres by federal and state governments, and (2) Pacific Lumber's submission to the United States Fish and Wildlife Service and the National Marine Fisheries Service (together, Services) of an application for an incidental take permit (ITP) covering Pacific Lumber's remaining lands. Pacific Lumber applied for the ITP on July 12, 1998, and on November 16, 1998, the Services initiated "formal consultation " on the application. On February 24, 1999, the Services completed their consultation and issued a final biological opinion, in which the Services concluded that covered species were unlikely to be adversely affected by Pacific Lumber's proposed habitat conservation plan. The ITP was issued on February 26, 1999, and became effective on March 1, 1999.

EPIC filed this action on August 12, 1998, alleging that Pacific Lumber, "as applicants for a federal permit, are in violation of section 7(d) of the Act by irreversibly and irretrievably committing resources, effectively foreclosing the formulation or implementation of reasonable and prudent alternatives, through carrying out timber harvest activities pending the completion of the required consultation procedures." The district court issued a temporary restraining order (TRO) on August 14, 1998, over Pacific Lumber's objections that only "formal" consultation triggered the restrictions of Act section 7(d). On September 3, 1998, the district court again rejected Pacific Lumber's contention that Act section 7(d) could only be triggered by "formal" consultation and converted the TRO into a preliminary injunction"to avoid the ten-day problem" with the understanding that the court would conduct hearings to "take testimony from pertinent persons" and would then "revise [the preliminary injunction] if it's determined to be necessary." The district court heard testimony on September 23-24, 1998, and on October 21-22, 1998, regarding the presence or absence of coho salmon in the lands covered by the ITP application.

Pacific Lumber filed a motion to dismiss on February 12, 1999, arguing that because by its terms section 7(d) of the Act applies only during "consultation," EPIC's lawsuit would become moot on March 1, 1999, when it was anticipated the biological opinion would issue. The biological opinion was actually issued earlier than expected, on February 24, 1999. The district court was informed of this development, at the latest, by March 5, 1999, when Pacific Lumber filed the biological opinion with the court.

On March 15, 1999, the same day the district court held a hearing on Pacific Lumber's motion to dismiss, the district court issued an order (March 15 order) containing its findings of fact and conclusions of law with respect to the preliminary injunction. In this order, the district court reviewed the evidence on the issue of whether coho salmon were present in certain watersheds and found that they had historically been present in certain streams. The district court then ruled against Pacific Lumber on four issues: (1) whether EPIC had standing to sue, (2) whether EPIC provided Pacific Lumber with the requisite notice of an intent to sue as required by the Act, (3) whether Act section 7 consultation requirements apply to ITP applications, and, if so, whether the requisite consultation had been initiated, and (4) whether EPIC had made a sufficient showing that Pacific Lumber's timber harvesting constituted an "irreversible or irretrievable commitment of resources in violation of Act section 7(d)." In an endnote appended to the order, the district court wrote, "The court notes that the Services issued an ITP and biological opinion on March 1, 1999, . . . and presently, several motions for summary judgment and dismiss [sic] are pending before the court regarding the effect of the ITP's issuance."

On May 5, 1999, the district court filed an order (May 5 order) granting Pacific Lumber's motion to dismiss and holding that issuance of the biological opinion had mooted the case. However, before reaching the threshold question of mootness, the district court further addressed,"by way of clarification of its order on plaintiffs' motion for preliminary injunction, whether the section 7 consultation requirements apply to [Pacific Lumber's] application for an ITP." The district court also stated that "the March 15 order properly addressed and adjudicated the issues raised by the parties at the September 3, 1998, hearing. As such, the court finds it appropriate to dissolve the preliminary injunction imposed on [Pacific Lumber] but does not vacate the March 15 order." The district court then filed the judgment, which stated that Pacific Lumber's motion to dismiss was granted and that the action brought by EPIC was "dismissed in its entirety."

II.

The parties are in agreement that the district court lost jurisdiction with the issuance of the biological opinion on February 24, 1999. The Supreme Court has emphasized,"For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998). Pacific Lumber argues that this principle requires us to vacate the district court's March 15 order and extraneous statements contained in the May 5 order. EPIC asserts that Pacific Lumber does not have standing to appeal from the district court's ultra vires statements because the final judgment was entirely in Pacific Lumber's favor. We review questions of standing de novo. McBride v. PLM Int'l, Inc., 179 F.3d 737, 748 (9th Cir. 1999).

A.

At the center of this standing controversy are the familiar concepts that courts "review judgments, not statements in opinions," California v. Rooney, 483 U.S. 307, 311 (1987) (internal quotation omitted), and that interlocutory orders entered prior to the judgment merge into the judgment. See, e.g., Amer. Ironworks & Erectors Inc. v. N. Amer. Const. Co., 248 F.3d 892, 897 (9th Cir. 2001); Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d 141, 144 (2d Cir. 1977) ("With the entry of the final judgment, the life of the preliminary injunction came to an end, and it no longer had a binding effect on any one."). As a result, "[o]rdinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom. A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333 (1980), see also Elec. Fittings Corp. v. Thomas & Betts Co. , 307 U.S. 241, 242 (1939). This rule "is one of federal appellate practice, however, derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts; it does not have its source in the jurisdictional limitations of Art. III." Roper, 445 U.S. at 333-34. As a result, three established prudential routes have developed by which a winning party may be deemed "aggrieved" by a favorable judgment, and thus be deemed to have standing on appeal.

First, the Supreme Court...