Southern Utah Wilderness Alliance v. Smith

• Decision Date: 25 March 1997
• Docket Number: No. 95-4145,95-4145
• Citation: 110 F.3d 724
• Parties: , 27 Envtl. L. Rep. 21,035, 97 CJ C.A.R. 450 SOUTHERN UTAH WILDERNESS ALLIANCE, a Utah non-profit corporation, Plaintiff-Appellant, v. Verlin SMITH, in his official capacity as Manager of the Bureau of Land Management; Bruce Babbitt, in his official capacity as Secretary of the Interior; and Bureau of Land Management, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 724

110 F.3d 724

44 ERC 1460, 27 Envtl. L. Rep. 21,035,

97 CJ C.A.R. 450

SOUTHERN UTAH WILDERNESS ALLIANCE, a Utah non-profit

corporation, Plaintiff-Appellant, v. Verlin SMITH, in his official capacity as Manager of the

Bureau of Land Management; Bruce Babbitt, in his official

capacity as Secretary of the Interior; and Bureau of Land

Management, Defendants-Appellees.

No. 95-4145.

United States Court of Appeals,Tenth Circuit.

March 25, 1997.

Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT (Lori Potter, Debra Asimus, Sierra Club Legal Defense Fund, Denver, CO, with her on the briefs), for Plaintiff-Appellant.

Edward J. Shawaker (Lois J. Schiffer, Assistant Attorney General, Ellen J. Kohler, and David C. Shilton, Attorneys, Department of Justice, with him on the brief), Washington, DC, for Defendants-Appellees.

Before ANDERSON, McWILLIAMS, and WEIS, ^* Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

On October 12, 1995, SUWA filed suit against the defendants, alleging, among other things, that the defendants violated section 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), by not consulting the United States Fish and Wildlife Service (the "FWS") regarding the impact the BLM's Moquith Mt. WSA Management Guidance and Schedule might have on Welsh's Milkweed, a threatened species. After hearing cross-motions for summary judgment, the district court found the defendants had not violated section 7(a)(2) and entered summary judgment denying SUWA's claim. Alternatively, the district court determined the claim was moot. This appeal followed.

Having independently reviewed the record, we agree with the district court that SUWA's section 7(a)(2) claim is moot. For the following reasons, we vacate the portion of the district court's judgment relating to SUWA's section 7(a)(2) claim, and remand with directions that the claim be dismissed.

I.

The Moquith Mountain Wilderness Study Area ("WSA"), located in Kane County, Utah, is managed by the BLM. Among other things, the WSA includes part of the "Coral Pink Sand Dunes." Other portions of the Dunes are located within the Coral Pink Sand Dunes State Park. Since at least the early 1980s, visitors have used off-road vehicles ("ORVs") both in the State Park and the WSA.

In 1987, Welsh's Milkweed was listed as a threatened species under the Endangered Species Act, and the Coral Pink Sand Dunes were designated as critical habitat. Appellant's App. at 43. In 1992, the FWS promulgated a Welsh's Milkweed Recovery Plan. The "immediate objective" of the Recovery Plan is to manage the Milkweed's habitat "so that viable populations can be maintained throughout the range of the species." Id. at 49. The Recovery Plan's long-term objective is to delist the Milkweed by achieving long-term demographic stability among Milkweed populations. Id.

Since 1983, the BLM has monitored Milkweed populations within the Dunes. In 1990, the BLM formed a Moquith Mt./Parunuweap Canyon Multiple Land Use Steering Committee. Supp.App. at 39. The BLM requested the FWS' participation on this committee, and the FWS designated Larry England as its representative. Id. Mr. England was the FWS employee responsible for monitoring the Milkweed and for preparing the 1992 Recovery Plan. Id. The Committee met regularly throughout 1990 and 1991. The FWS was always invited to attend these meeting, and Mr. England attended frequently. See id. at 52, 56, 63.

The Committee's final management recommendations were issued in September, 1991. Id. at 64-84. In these recommendations, the Committee explicitly addressed the impact of ORV use on the Milkweed, stating that the precise impact of ORV use on the Milkweed was not yet known, and that the "BLM, in coordination with the [FWS], should implement research studies that can determine the impacts of ORV's on plant survival." Id. at 69. The Committee also made several recommendations regarding ORV use generally which were aimed at bringing ORV use within the WSA into harmony with previously established management goals.

In 1992, the BLM formed an interdisciplinary team to carry on the work begun by the Steering Committee. Id. at 132. Again, Mr. England participated on the team as an FWS representative. Id. at 134, 135. Among other things, the team discussed ORV impact on the Milkweed, and considered immediate actions the BLM could take to limit trails developing in the Dunes and to limit camping and campfires. Id. at 173-75. On February 19, 1993, Mr. England also attended a Milkweed Recovery Meeting sponsored by the BLM, where ORV impact on the Milkweed was again discussed. Id. at 160-63.

On February 28, 1994, the BLM issued the Moquith Mt. WSA Management Guidance and Schedule (the "Schedule"). The Schedule's objective was to "identify areas within the WSA that are receiving unauthorized vehicle use and implement management actions that will discourage and curtail this use." Appellant's App. at 72. The Schedule required the closing of several ORV routes to the Dunes, and restricted camping and campfires. While not eliminating ORV use entirely, the Schedule noted explicitly that the closure of certain ORV access routes was intended to protect Milkweed Habitat. Id. at 77.

On October 12, 1994, SUWA filed suit against the defendants, alleging (1) that the BLM violated section 7(a)(2) of the ESA by not consulting the FWS prior to implementing the Schedule, (2) that the Schedule violated section 7(a)(1) of the ESA by failing to conserve the Milkweed as required by the FWS Recovery Plan, and (3) that the Schedule failed to prevent unnecessary degradation of public resources. Id. at 1-9 (Complaint). SUWA requested a declaratory judgment noting the violations, and an injunction compelling the defendants to "stay implementation of the Schedule, to consult with the U.S. Fish and Wildlife Service regarding the impacts of ORV use on Welsh's milkweed, to implement the recommendations of the Recovery Plan within the WSA, and to prevent any unnecessary or undue degradation to the Welsh's milkweed and the milkweed's critical habitat." Id. at 8-9.

The BLM filed the administrative record with the district court on February 9, 1995. SUWA moved to strike Documents 68 and 69, the last two documents in the administrative record. Document 68 is a letter, dated February 2, 1995, from the BLM to the FWS. Appellant's App. at 97. The letter sets forth the "chronological record" of the two Agencies' consultations regarding ORV impact on the Milkweed. The letter also requests the FWS' "concurrence regarding the actions and conclusions resulting from informal consultation that have taken place thus far." Id. at 101.

Document 69 is the FWS' response to the BLM's February 2 missive. By letter dated February 6, 1995, the FWS acknowledged its "informal interagency consultation" with the BLM regarding the BLM's actions affecting the Milkweed, and praised the BLM for its "accomplished and continuing conservation efforts for Asclepais welshii identified in the Welsh's milkweed recovery plan." Id. at 102. The FWS also stated:

The Service has reviewed the Bureau's Moquith Mt. WSA Management Guidance and Schedule (management guidance). Implementation of the management guidance will not adversely affect Asclepais welshii. Furthermore, the Service finds the above management guidance to be consistent with stated goals of the Welsh's milkweed recovery plan and a start in the implementation of [recovery plan tasks]. The Service recommends that the management guidance remain in effect until the RMP and HMP are developed and a formal land management plan and designation is extended to the Dunes.

Id. at 103.

SUWA's motion to strike Documents 68 and 69 was based on the contention that these letters were post hoc rationalizations for a prior agency action, and were not part of the administrative record at the time the BLM decided to implement the Schedule. The district court granted SUWA's motion to strike in part. The district court refused to consider Documents 68 and 69 in the context of what information was before the BLM at the time it implemented the Schedule. The court accepted Documents 68 and 69, however, for the limited purpose of demonstrating whether informal consultation between the Agencies had occurred. Id. at 22 (Order filed June 21, 1995).

After hearing cross-motions for summary judgment, the district court denied all three of SUWA's claims on the merits. The district court also found that SUWA's section 7(a)(2) claim was moot because the "relief sought has been obtained." Id. at 21. SUWA appeals only the denial of the section 7(a)(2) "failure to consult" claim. The only relief SUWA requests is a declaration that the defendants violated section 7(a)(2), and an injunction staying implementation of the Schedule and ordering the BLM to consult the FWS.

II.

A. Injunctive Relief

On appeal, the defendants argue, among other things, that the district court was correct in finding SUWA's claim moot. They contend that even if the BLM did not complete its consultation with the FWS prior to implementing the Schedule, such consultation has now been completed. Since consultation is the only relief sought by SUWA, the defendants conclude that the relief has already been obtained and an injunction would be unnecessary. We agree.

Article III mootness is "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Arizonans For Official English v. Arizona, --- U.S. ----, ----, 117 S.Ct. 1055, 1069, 137 L.Ed.2d 170 (1997) (quoting Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). A federal court has no power to give opinions upon moot questions or declare principles of law which cannot affect the matter in issue in the case before it. Church of Scientology of California v. United States, ...