Feldman v. Bomar

• Decision Date: 10 January 2008
• Docket Number: No. 06-55675.,06-55675.
• Citation: 518 F.3d 637
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Richard M. FELDMAN, an individual; Robert Lee Puddicombe, an individual; in Defense of Animals, Plaintiffs-Appellants, v. Mary BOMAR,<SMALL><SUP>*</SUP></SMALL> in her official capacity as the Director of the National Park Service; Kate Faulkner, in her official capacity as the Chief of Natural Resources Management at Channel Islands National Park; National Park Service, a bureau of the U.S. Department of the Interior; Nature Conservancy, an international non-profit corporation, Defendants-Appellees.

518 F.3d 637

Richard M. FELDMAN, an individual; Robert Lee Puddicombe, an individual; in Defense of Animals, Plaintiffs-Appellants, v. Mary BOMAR,^* in her official capacity as the Director of the National Park Service; Kate Faulkner, in her official capacity as the Chief of Natural Resources

Management at Channel Islands National Park; National Park Service, a bureau of the U.S. Department of the Interior; Nature Conservancy, an international non-profit corporation, Defendants-Appellees.

No. 06-55675.

United States Court of Appeals, Ninth Circuit.

Submitted November 8, 2007.^**

Filed January 10, 2008.

Amended March 3, 2008.

Yano L. Rubinstein and Cindy J. Scribe, Rubinstein Law Group, San Francisco, CA, for the plaintiffs-appellants.

Todd S. Aagaard, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, D.C., and Andrew B. Sabey and Scott B. Birkey, Cox, Castle & Nicholson, LLP, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-05-04900-DT.

Before: KIM McLANE WARDLAW, CARLOS T. BEA, and N. RANDY SMITH, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed January 10, 2008 is amended as follows: Slip op., page 371, line 6,: After the sentence reading, "On July 5, 2005, two years after the SCIPRP was approved, IDA, Feldman, and Puddicombe (individuals who frequent the island and enjoy viewing the pigs) filed suit principally seeking to enjoin the feral pig eradication," add footnote No. 3 as follows: "³ Because Appellants concede the pigs could not remain on the island and contest only the manner in which they should have been removed, it is at least open to question whether Appellants' frequenting the island and viewing the pigs is sufficient to grant them standing to pursue this action. Because we dismiss this appeal as moot, however, it is unnecessary to resolve that question."

No petition for rehearing or rehearing en banc was filed within the original time period, and that time period has now expired. No subsequent petitions for rehearing or rehearing en banc shall be filed.

IT IS SO ORDERED.

OPINION

WARDLAW, Circuit Judge:

Richard M. Feldman, Robert Lee Puddicombe, and In Defense of Animals (IDA) (collectively "Appellants") appeal the judgment in favor of the Nature Conservancy (TNC), the National Park Service (NPS), NPS's director, and the Chief of Natural Resources Management at Channel Islands National Park (collectively "Appellees") on their claims that Appellees violated the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) in adopting NPS's program to restore and protect Santa Cruz Island by, in part, eradicating its feral pig population. Appellants do not dispute that the pigs threatened Santa Cruz Island's ecological and archeological infrastructure; however, they would have preferred eliminating the population through non-lethal means, such as sterilization or removal of the pigs to the mainland, and they challenge NPS's process in reaching its conclusion that the pigs should be killed instead. Because NPS completely eradicated the feral pigs from Santa Cruz Island during the pendency of this litigation,¹ and because Appellants allege only procedural violations in the development of the eradication program and do not seek compensation in monetary damages, we grant Appellees' motion to dismiss the appeal as moot. Appellees have met their heavy burden of demonstrating that "no effective relief for the alleged violation[s] can be given." Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002).

I

Santa Cruz Island, a part of the Channel Islands National Park, is located off the California coast between Ventura and Santa Barbara. The island is jointly owned by TNC and NPS, and contains a wealth of undisturbed Native American archeological resources and several unique species of plants and animals. Many of the island's notable resources, however, were adversely affected by non-native feral pigs, who rooted in the soil, destroying endangered vegetation, causing erosion, and damaging archeological artifacts. Moreover, feral piglets served as the primary food source for another non-native species, the golden eagle, that in turn hunted and decimated the native Santa Cruz Island Fox population to near-extinction. Golden eagles were attracted to the island both by the abundant food supply of feral piglets and by the relatively recent absence of native bald eagles, who historically repelled the golden eagles but were nearly obliterated by DDT and other pollutants.

In 1999, NPS convened a team to develop strategies to recover the island fox populations to viable levels. The team proposed four emergency measures: (1) "[r]elocate golden eagles from the northern Channel Islands [to the mainland]"; (2) "[e]stablish fox sanctuary/captive breeding programs on Santa Rosa and San Miguel Islands"; (3) "[e]radicate feral pigs"; and (4) "[r]eintroduce bald eagles." On February 1, 2001, NPS issued a draft Environmental Impact Statement (EIS) for the Santa Cruz Island Primary Restoration Plan (SCIPRP), which proposed, inter alia, to eradicate the nonnative feral pig population.² NPS allowed interested parties to comment on the draft EIS, and responded to these comments in its final EIS, which was released in June 2002 and approved in April 2003.

During the comment period, appellant IDA, a non-profit group that advocates for the humane treatment of all animals, recommended that NPS "avoid . . . all-kill policies . . . and . . . seek a non-lethal, alternative solution," such as sterilization. NPS rejected IDA's recommendation, finding that non-lethal methods were impractical. For example, NPS considered the "use of contraception or sterilization," but found that "[t]he logistics of delivering . . . sterilant to all pigs on the island [would be] an insurmountable obstacle." Similarly, it dismissed the possibility of "[l]ive capture of feral pigs and relocation to the mainland," because state agencies would not permit such transfer for fear of potential disease. Finally, NPS considered various methods of killing the feral pigs, including snares, poisons, and swine diseases, but found that "a well-placed gunshot" was far more efficient and often more humane.

On July 5, 2005, two years after the SCIPRP was approved, IDA, Feldman, and Puddicombe (individuals who frequent the island and enjoy viewing the pigs) filed suit principally seeking to enjoin the feral pig eradication.³ They asserted that Appellants violated NEPA and CEQA by deciding to exterminate the feral pigs before releasing the EIS; failing to include the pig eradication, the golden eagle relocation, the bald eagle reintroduction, and the fox breeding in the same EIS; "tiering" the EIS on an outdated general management plan; failing to consider reasonable alternatives; failing to analyze the cumulative effects of the pig eradication; failing to create a new EIS when supplemental information about new contraceptives became available; and failing to file its environmental review documents with the California State Clearinghouse.

The district court denied all preliminary injunctive relief, and we affirmed. Feldman v. Mainella, 166 Fed.Appx. 969 (9th Cir.2006) (mem.). District Judge Tevrizian then entered summary judgment for Appellees, denying each of Appellants' claims on the merits. He also granted summary judgment on the alternative ground that Appellants' claims were barred under the doctrine of laches because Appellees were prejudiced by Appellants' two-year delay in filing suit. Appellants timely appealed, both parties completed briefing, and oral argument was scheduled for November 8, 2007.

On October 15, 2007, Appellees moved to dismiss this appeal as moot, asserting that the pig eradication challenged in this case had been completed and representing that "no pigs remain on Santa Cruz Island." The motion referenced an August 28, 2007, press release in which NPS announced the successful eradication:

Launched in April 2005, the eradication program was completed in record time by Prohunt Inc., a professional hunting firm from New Zealand that specializes in island conservation through the elimination of non-native animals. . . . A total of 5,036 pigs were dispatched using non-lead bullets and following euthanasia guidelines set forth by the American Medical Veterinary Association.

The press release quotes Dr. Lotus Vermeer, director of TNC's Santa Cruz Island Preserve: "`Based on extensive monitoring over the past year we believe the island is pig-free. We are now well on our way to restoring the biological balance of the island and saving unique species found nowhere else on Earth.'" In their response, Appellants conceded they "cannot present any evidence indicating that pigs remain on the Santa Cruz Island."

II

As the parties acknowledge, we lack jurisdiction to hear moot claims. Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir.1990). However, "[t]he burden of demonstrating mootness is a heavy one." Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988). Even if a case is moot with respect to injunctive relief, a court may invoke jurisdiction over a claim for declaratory relief. Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 12122, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). Nonetheless, "a case or controversy exists justifying declaratory relief only when the challenged government activity is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties." Headwaters, 893 F.2d at 1015 (internal quotation and alteration omitted). "The adverse effect . . . must not be so remote and speculative that there is no tangible...