Wyoming v. U.S. Dept. of Interior

• Decision Date: 24 November 2009
• Docket Number: No. 09-8035.,09-8035.
• Citation: 587 F.3d 1245
• Parties: State of WYOMING; Park County Commissioner Hall, in His Official Capacity, a/k/a Bucky Hall; Park County Commissioner French, in His Official Capacity, a/k/a Tim A. French; Park County Commissioner Brewer, in His Official Capacity, a/k/a Bill Brewer; Park County Commissioner Siggins, in Her Official Capacity, a/k/a Jill Shockley Siggins; Park County Commissioner Fontaine, in her official capacity, a/k/a Marie A. Fontaine, Petitioners-Appellees, v. UNITED STATES DEPARTMENT OF INTERIOR; National Park Service; United States Department of the Interior Secretary, in His Official Capacity, a/k/a Ken Salazar; National Park Service Director, in Her Official Capacity, a/k/a Mary Bomar; National Park Service Regional Director Intermountain Region, in his official capacity, a/k/a Michael Snyder, Respondents-Appellees. International Snowmobile Manufacturer's Association, Inc.; American Council Of Snowmobile Associations; Blue Ribbon Coalition, Inc.; Teri Manning, individually, Intervenors-Appellees, National Parks Conservation Association, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

587 F.3d 1245

State of WYOMING; Park County Commissioner Hall, in His Official Capacity, a/k/a Bucky Hall; Park County Commissioner French, in His Official Capacity, a/k/a Tim A. French; Park County Commissioner Brewer, in His Official Capacity, a/k/a Bill Brewer; Park County Commissioner Siggins, in Her Official Capacity, a/k/a Jill Shockley Siggins; Park County Commissioner Fontaine, in her official capacity, a/k/a Marie A. Fontaine, Petitioners-Appellees, v. UNITED STATES DEPARTMENT OF INTERIOR; National Park Service; United States Department of the Interior Secretary, in His Official Capacity, a/k/a Ken Salazar; National Park Service Director, in Her Official Capacity, a/k/a Mary Bomar; National Park Service Regional Director Intermountain Region, in his official capacity, a/k/a Michael Snyder, Respondents-Appellees International Snowmobile Manufacturer's Association, Inc.; American Council Of Snowmobile Associations; Blue Ribbon Coalition, Inc.; Teri Manning, individually, Intervenors-Appellees National Parks Conservation Association, Intervenor-Appellant.

No. 09-8035.

United States Court of Appeals, Tenth Circuit.

November 24, 2009.

Robert D. Rosenbaum (Holly E. Sterrett and Ingo W. Sprie, Jr. with him on the briefs), Arnold & Porter LLP, Denver, CO, for Intervenor-Appellant National Parks Conservation Association.

James Kaste, Senior Assistant Attorney General (Jay Jerde, Deputy Attorney General with him on the brief), Cheyenne, WY, for Petitioner-Appellee State of Wyoming.

Bryan A. Skoric, Park County Attorney, and James F. Davis, Deputy Park County Attorney, Cody, WY, for Petitioner-Appellee Park County Commissioners.

William P. Horn, Birch Horton Bittner & Cherot, PC, Washington, D.C., and Harriet

M. Hageman and Kara Brighton, Hageman & Brighton, Cheyenne, WY, for Intervenors-Appellees International Snowmobile Manufacturer's Association, American Council of Snowmobile Associations, Blue Ribbon Coalition, Inc. and Teri Manning.

Before O'BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and GORSUCH, Circuit Judge.

GORSUCH, Circuit Judge.

This is the latest installment in a long series of cases seeking to resolve the fate of snowmobiles in Yellowstone National Park. Our particular case began in district court in Wyoming, when the State of Wyoming and allied snowmobile enthusiasts challenged a 2007 National Park Service rule on the basis that it unduly restricted access to the Park. Before the Wyoming district court could rule, however, another district court in Washington, D.C. invalidated the 2007 regulation, though it did so on the basis that the regulation was too easy, not too tough, on snowmobile access. As the Wyoming district court saw it, the D.C. decision answered one question— what to do about the 2007 rule—but posed another: what rules of the road should govern access to the Park until the Park Service could issue a new regulation in response to the D.C. district court's decision? Perceiving an unfilled regulatory gap and a resulting uncertainty among the parties and public, the Wyoming district court issued an interim remedial order allowing 720 snowmobiles to enter Yellowstone daily until the Park Service could craft a new rule of its own.

When this appeal came to us, then, it was a dispute only over whether the Wyoming district court had the power to order its interim remedy. With winter fast approaching, we afforded the litigants the first available opportunity to argue this question to us. But time waits for no one, and in the brief period since we heard oral argument, the topography of this case changed yet again, when the Park Service promulgated a new regulation for this winter season. It now makes no difference whether or not the Wyoming district court had the power to issue the interim relief as it did. Either way, the Park Service's new regulation, not the court's order, will govern snowmobile access in Yellowstone. Although interesting academic questions about the district court's now-supplanted order may remain, under Article III of our Constitution federal courts may answer only questions whose resolution will have an actual effect in the real world. Because no such questions remain in this case, we dismiss this appeal as moot, vacate the judgment of the district court, and remand with instructions to dismiss the case for lack of subject matter jurisdiction.

I

Over the last three decades, the question of snowmobiling in Yellowstone National Park¹ has inspired a great many regulatory initiatives and lawsuits filling volumes in the federal register and reports. It is virtually impossible to understand the narrow and very particular dispute currently before us without at least some general appreciation of this background.

That takes us back to 1974. That year, in response to an executive order by President Nixon directing the Secretary of Interior to establish policies for off-road vehicles on public lands, Executive Order No. 11644, 37 Fed.Reg. 2877 (Feb. 8, 1972), the National Park Service adopted a default rule for all national parks: the "use of snowmobiles is prohibited, except on designated routes." 36 C.F.R. § 2.18(c) (2009), earlier version codified at 36 C.F.R. § 2.34(c) (1974). Under this default rule— sometimes called the "closed unless opened" rule—the Park Service must promulgate a special regulation designating particular routes in a particular national park open to snowmobiles; absent such a rule, no snowmobiles are allowed.

For many years, a special regulation designated routes open to snowmobiles in Yellowstone and didn't limit how many snowmobiles could enter the park. See 36 C.F.R. § 7.13(l)(2) (2000). But, after a challenge to this policy brought in a Washington, D.C. district court by snowmobiling opponents, and a resulting settlement, the Park Service adopted a rule in 2001 aimed at effecting a complete phase-out of snowmobiles in the Park after the 2003-2004 winter season. 66 Fed.Reg. 7260 (Jan. 22, 2001).

Rather than resolving the matter, though, this proved only the beginning of a long legal battle, one waged in two district courts separated by half a continent but sharing a common grant of jurisdiction. See 28 U.S.C. § 1391(e). A suit challenging the 2001 rule, this time brought in Wyoming district court by snowmobiling proponents, ended in another settlement and another new rule in 2003. This rule took a very different course than the 2001 rule, promising to allow 950 snowmobiles into the Park daily. 68 Fed.Reg. 69268 (Dec. 11, 2003).

The 2003 rule itself soon drew a legal challenge, now brought in the D.C. district court by snowmobiling opponents. At the end of this lawsuit, the D.C. court invalidated the 2003 rule and reinstated the 2001 rule. The Fund for Animals v. Norton, 294 F.Supp.2d 92, 115 (D.D.C.2003). All this did, however, was prod the plaintiffs from the earlier Wyoming action into reviving their challenge to the 2001 rule in Wyoming, a challenge that they eventually won and that resulted in the rule's invalidation. Int'l Snowmobile Mfrs. Ass'n v. Norton, 340 F.Supp.2d 1249, 1266 (D.Wyo. 2004).

In the wake of all this, the Park Service adopted a new rule in 2004 to govern snowmobile use in Yellowstone until it could complete new environmental impact studies and put in place (what it hoped might be) a more permanent snowmobile policy. The 2004 rule designated certain routes as open to snowmobiles and authorized up to 720 snowmobiles daily in the park. 69 Fed.Reg. 65348 (Nov. 10, 2004). The 2004 rule, however, contained sunset clauses providing that its snowmobile authorization and route designations would terminate after the 2006-2007 winter season. Id. at 65360-61. Unlike its predecessors, this temporary 2004 rule survived both a challenge in D.C. brought by snowmobile opponents and a challenge in Wyoming brought by snowmobile proponents. See The Fund for Animals v. Norton, 390 F.Supp.2d 12 (D.D.C.2005) (rejecting a challenge to the 2004 rule brought as a motion to enforce the order invalidating the 2003 rule and holding that it must be brought as a new suit); Wyo. Lodging & Rest. Ass'n v. U.S. Dep't of the Interior, 398 F.Supp.2d 1197 (D.Wyo.2005) (upholding 2004 rule against challenges under National Environmental Policy Act and Administrative Procedure Act).

The 2004 rule, however, just suspended rather than resolved the fight. After the 2004 rule expired by its own terms, the Park Service introduced in 2007 what it intended to be a permanent rule. The 2007 rule designated certain routes as open to snowmobiles and allowed 540 snowmobiles in the park daily. 72 Fed. Reg. 70781, 70797-98 (Dec. 13, 2007). By now perhaps unsurprisingly, this new rule drew near-simultaneous challenges from different directions in more ways than one. In the D.C. district court, the Greater Yellowstone Coalition and the National Parks Conservation Association (the "Conservation Association"), a private conservation group, challenged the 2007 rule on the ground that it allowed too many snowmobiles. Greater Yellowstone Coal. v. Kempthorne, 577 F.Supp.2d 183, 186 (D.D.C.2008). Meanwhile, a group of petitioners comprising the State of Wyoming and the Park County Board of County Commissioners, together with intervenors, the International Snowmobile Manufacturers Association, the American Council of Snowmobile Associations, the Blue Ribbon Coalition, and Teri Manning (collectively, the "petitioners"), challenged the rule in Wyoming district court under the Administrative Procedure Act ("APA"), alleging that it permitted too few snowmobiles.

To this point, the Park Service had seemingly sought to pursue a strategy of seeking to please everyone all the time, settling each legal challenge as it came rather than litigating any through appeal for a definitive resolution of the matter. This left the Park Service betwixt and between often conflicting sets of guidance from two different district courts with apparently different visions of the...