Opinion
2:21-cv-00297-HL
11-08-2022
WESTERN WATERSHEDS PROJECT et al., Plaintiffs, v. SECRETARY OF THE UNITED STATES DEPARTMENT OF INTERIOR and BUREAU OF LAND MANAGEMENT, Defendants.
FINDINGS AND RECOMMENDATION
HALLMAN, UNITED STATES MAGISTRATE JUDGE:
Plaintiffs Western Watersheds Project, Oregon Natural Desert Association, WildEarth Guardians, and Center for Biological Diversity (collectively, “Plaintiffs”) filed a Complaint against the Secretary of the United States Department of the Interior (the “Secretary”) and the Bureau of Land Management (“BLM”) (collectively, “Defendants” or the “Government”). This matter comes before the Court on Defendants' Motion to Dismiss all claims as moot pursuant to Federal Rule of Civil Procedure 12(b)(1). This Court held oral argument on June 29, 2022. For the reasons discussed below, Defendants' Motion to Dismiss should be GRANTED as to Plaintiffs' third claim and the portion of Plaintiffs' first claim that relates to the shortened protest period. Defendants' motion should otherwise be DENIED.
The following background is taken from Plaintiffs' Complaint and documents subject to judicial notice, including documents made publicly available by the Government after the filing of this motion. See United States Small Bus. Admin. v. Bensal, 853 F.3d 992, 1003 (9th Cir. 2017) (taking judicial notice of information posted on the agency's website). Both parties rely on this evidence outside Plaintiffs' Complaint in support of their mootness arguments. Moreover, considering evidence outside a complaint is appropriate when ruling on Rule 12(b)(1) motions. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
This case challenges a grazing permit the Secretary issued Hamond Ranches Inc. (the “Ranch”) on the last day of the former president's administration. Compl. ¶ 1, ECF 1. Plaintiffs allege that, in issuing the permit, the Government violated various provisions of the Federal Land Policy and Management Act (“Land Policy Act”), the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act (“APA”), and the Steens Mountain Cooperative Management and Protection Act of 2000 (“Steens Act”). The permit authorized grazing rights on the Bridge Creek Allotments (the “Allotments”), which are on Steens Mountain in southeastern Oregon. Compl. ¶ 1. After Plaintiffs filed this case, the new Secretary revoked the grazing permit, and Defendants are now moving to dismiss the case as moot. Defs.' Mot. Dismiss 2, ECF 21.
I. The Allotments
The Allotments is the collective name of four grazing allotments-Hammond, Mud Creek, Hardie Summer, and Hammond FFR-on the southwest slope of Steens Mountain. Compl. ¶¶ 1, 3. The area lies within the Steens Mountain Cooperative Management and Protection Area (“Steens Management Area”), a unique high desert landscape in southeastern Oregon that is also grazed under the Land Policy Act. Compl. ¶¶ 52-55, 61-70.
II. Regulations Applicable to Grazing Permit Decisions on the Allotments
Regulations governing grazing decisions on the allotments are substantive under the Land Policy Act and Steens Act, and procedural under NEPA and the Land Policy Act.
Under the Land Policy Act and applicable regulations, grazing decisions must comply with pertinent resource management plans (also called “land use plans”). Compl. ¶ 29 (citing 43 U.S.C. § 1721(a)). BLM issued land use plans for the Steens Management Area and the Andrews Management Unit in 2005. Id. ¶ 31. These two land use plans govern most of the Allotments. Id. The Oregon Greater Sage-Grouse Approved Resource Management Plan Amendment (the “Grouse Amendment”) altered both the Allotment's land use plans. Id. ¶ 33 (citing U.S. Department of Interior, Oregon Grater Sage-Grouse Approved Resource Management Plan Amendment (September 2015)). The Grouse Amendment requires various vegetative standards to be met on the Allotments to preserve sage-grouse habitat. Id. ¶ 33. The Land Policy Act also requires applicants for renewal of grazing permits to have a satisfactory record of performance based on substantial compliance with prior permits and applicable rules and regulations. Id. ¶ 37-38 (citing 43 C.F.R. § 4110.1(b)). Finally, the Land Policy Act has two procedural requirements: first, the government must hold a 15-day protest period before issuing a final grazing decision, and second, the Secretary can only assume jurisdiction over “cases.” Id. ¶¶ 111, 114 (citing 43 C.F.R. §§ 4.5, 4160.1).
The Steens Act requires the Secretary to prepare “a comprehensive plan for the long-range protection and management of the Federal lands included in the [Steens Management Area].” Id. ¶ 55 (citing 16 U.S.C § 460nnn-21(a); 43 U.S.C. § 1732(a)).
Under NEPA, the government must take a “hard look” at the environmental impacts of proposed actions and analyze reasonable alternatives to avoid or minimize such impacts. Id. ¶ 45-46 (citing 42 U.S.C. § 4332(2)(C)). For all actions significantly affecting the quality of the human environment, the government must analyze environmental impacts through a more comprehensive Environmental Impact Statement (“EIS”). Id. ¶ 48-49 (citing 42 U.S.C. § 4332(2)(C)). The government may prepare an Environmental Assessment (“EA”) to determine whether an EIS is warranted. Id. “The NEPA review process concludes in one of two ways: (1) the agency determines through an EA that a proposed action will not have a significant impact on the environment and issues a [Finding of no Significant Impact or] FONSI, or (2) the agency determines that the action will have a significant impact and issues an EIS and record of decision. See 40 C.F.R. §§ 1505.2 (record of decision), 1508.13 (FONSI).” Env't Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 868 (9th Cir. 2022).
III. The Ranch's History of Grazing Violations
Plaintiffs allege the Ranch has violated its grazing permits on the Allotments in many ways. The Ranch's owners, Dwight and Steven Hammond, intentionally set fires on Steens Mountain, and the Ranch overgrazed the Allotments from 2007 to 2009 and 2011 to 2013. Id. ¶¶ 77, 86. The Ranch lost its permit in 2014, and the owners were convicted of arson but later pardoned by the former president. Id. After the pardon, the Secretary ordered BLM to renew the Ranch's permit, which it did in 2019. Id. ¶ 77. The Ranch violated this 2019 permit by putting six times the head of cattle allowed on the Hammond Allotment 10 days before the permit began. The Ranch also significantly over foraged the Allotment. Id. ¶¶ 79, 81. The District of Oregon issued a preliminary injunction requiring the Ranch to graze no more than 14 days on the Mud Creek Allotment and no more than 30% utilization of the Hardy Summer Allotment under the 2019 permit. Id. ¶ 82. The Ranch violated both orders by grazing Mud Creek for 15 days and overgrazing the Hardy Summer Allotment. Id. ¶¶ 83-84. The District of Oregon vacated the 2019 permit at the end of 2019, holding the Secretary's decision violated the APA. Id. ¶ 87; see also W. Watersheds Project v. Bernhardt, 428 F.Supp.3d 327 (D. Or. 2019).
IV. The 2021 Grazing Decision
In March 2020, BLM announced another opportunity for livestock operators to apply for permits for grazing rights on the Allotments.
BLM began the NEPA process to consider a new grazing decision for the Allotments in late 2020 by mailing a scoping letter to interested members of the public. Compl. ¶ 22. A month later, BLM issued a draft Bridge Creek Area Allotment Management Plan (“Allotment Plan”) and related EA. Id. ¶ 5. The agency allowed eight business days for public comment on the draft documents and purported to incorporate and respond to all comments received within another eight business days-an uncommonly short public comment period. Id. BLM issued a proposed decision at the end of 2020. Id. ¶ 6. BLM ended the later protest period before Plaintiffs had the required 15 days to review the official copies of the EA. Id. ¶¶ 97-103.
BLM purported to resolve 160 separate protests in a single business day, and then-Secretary Bernhardt issued a final decision to grant grazing privileges to the Ranch on January 19, 2021. Id. ¶¶ 105-06.
V. Plaintiffs' Initial Challenge to the 2021 Grazing Decision
Plaintiffs filed this action on February 25, 2021, bringing five claims for relief concerning the 2021 grazing decision: (1) The Secretary improperly assuming jurisdiction before the decision became a “case,” and improperly shortening the required protest period before issuing a final grazing decision, Compl. ¶¶ 109-121; (2) awarding the permit to an unqualified applicant under the Land Policy Act because the Ranch had a record of permit violations and other applicants did not, id. ¶¶ 122-129; (3) basing the final decision on a flawed and incomplete EA and related FONSI, id. ¶¶ 130-136; (4) failing to ensure the issued permit satisfied the Grouse Amendments issued under the Land Policy Act, id. ¶¶ 137-141; and (5) issuing a permit that violates the Steens Act by not adequately protecting the Steens Management Area and misinterpreting the Steens Act to include an additional competing purpose of promoting viable and sustainable grazing operations. Id. ¶¶ 142-147.
Plaintiffs' prayer for relief includes declaring that the violations listed throughout their claims occurred and enjoining BLM from issuing any grazing on the Allotments that violates Plaintiffs' claims. Id. at 46. It also includes declaring the Government's EA, FONSI, and approval of the Allotment Plan and grazing permit unlawful under the Land Policy Act, NEPA, the Steens Act, or the APA. Id. Plaintiffs also request an injunction requiring the Government to comply with the Land Policy Act, NEPA, the Steens Act, and the APA, including determining the applicant has a satisfactory record of compliance, conducting a lawful environmental analysis, and complying with applicable land use plans and the Grouse Amendments. Id.
V. The Government's Subsequent Acts
One day after Plaintiffs filed this litigation, the new Secretary rescinded the 2021 grazing decision and remanding the matter to BLM for further consideration. See Mot. Dismiss Ex. B (“Notice of Rescission”), ECF 21. The Notice of Rescission acknowledged BLM's violation of the agency's protest regulations: “Because the protest period had not properly concluded before the January 19 Decision was issued, I am rescinding the January 19 Decision and remanding the matter to the BLM to allow for full consideration of the timely protests received by the BLM in accordance with 43 C.F.R. subpart 4160.” The Notice of Rescission initially left the EA and FONSI intact. See id. (not rescinding or withdrawing the EA or the FONSI).
In April 2021, BLM announced on its ePlanning website its intention to engage in further NEPA process and public review for the Allotment Plan:
Following rescission of the January 19, 2021 Decision and remand of the matter back to BLM of Land Management, the BLM Burns District is reviewing options for completing the new Bridge Creek Area Allotments Management Plan. The District is taking a careful look at protest points. Based on review to date, the District has determined it will offer further public involvement in the NEPA process. In the coming months, the BLM Burns District will post its updated NEPA analysis on this ePlanning site for further public review and comment.Mot. Dismiss 4.
One month later, BLM published a Notice of Intent to prepare an EIS for the Allotment Plan. Id; see also 86 Fed.Reg. 68,682. The notice outlines the public scoping process for the EIS and invites public written comments on the process. Id. Further, BLM intends to “provide additional opportunities for public participation upon publication of the draft EIS.” Id. BLM has not yet issued a new decision or an EIS for the public to review and comment on.
Finally in February 2022, Defendants provided notice that BLM withdrew the FONSI by posting a notice on its ePlanning website. Notice Defs.' Withdrawal of FONSI (“FONSI Withdrawal”) 2, ECF 28. The notice stated in full:
On December 3, 2021, BLM issued a Notice of Intent to prepare an Environmental Impact Statement (EIS) and initiated scoping to support a new decision relating to the Bridge Creek Area Allotment Management Plans. In light of this new effort and ongoing litigation, we are withdrawing the FONSI dated January 19, 2021.Id.
STANDARD OF REVIEW
Federal courts must dismiss any case over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject-matter jurisdiction, it lacks the statutory or constitutional power to adjudicate a case). Whether a claim is moot under Article III of the United States Constitution is a component of subject matter jurisdiction properly challenged under Federal Rule of Civil Procedure 12(b)(1). Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010).
Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. “In evaluating the Rule 12(b)(1) motion to dismiss, the district court [may] consider[] affidavits furnished by both parties. This is proper because Rule 12(b)(1) attacks on jurisdiction can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint.” Savage, 343 F.3d at 1039 n.2; see also Bailey v. United States, 642 F.2d 344, 347 (9th Cir. 1981) (the “district court may rely on affidavits to make factual findings in deciding [the] question of jurisdiction on a motion to dismiss.”) (citation omitted).
DISCUSSION
The Government initially moved to dismiss this case as moot on the grounds that it “has rescinded the challenged decision and initiated a new NEPA process that provides further opportunities for public involvement.” Mot. Dismiss 10. In response, Plaintiffs dispute that the case is moot under general mootness principles and assert that their claims are not moot under the voluntary cessation and capable of repetition yet evading review standards. Pls.' Resp. to Mot. Dismiss, ECF 22.
I. General Mootness Standards
The parties first dispute whether Plaintiffs' claims are moot under general standards, particularly focusing on the Government's withdrawal of the FONSI during the litigation. See FONSI Withdrawal. This Court concludes that Plaintiffs' claims are moot under the general standard for three reasons: (1) Plaintiffs no longer face an imminent concrete injury, (2) the Government's EA and FONSI are not properly reviewable, and (3) the Government's challenged acts must recur for the Court to grant any effective relief.
A. Applicable Law
Article III courts can only adjudicate cases or controversies, which require a concrete injury that is traceable to the defendant's unlawful conduct and likely to be redressed by the requested relief. Already, LLC v. Nike Inc., 568 U.S. 85, 90-91 (2013). “[A]n ‘actual controversy' must exist for each form of relief and through all stages of the litigation.” Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 185 (2000)); see also Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1094 (9th Cir. 2003) (a case is moot when a court cannot grant effective relief for the alleged violation.).
“[M]ootness can be described as . . . 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).” Laidlaw, 528 U.S. at 189; see also Clark v. City of Lakewood, 259 F.3d 996, 1011 n.7 (9th Cir. 2001) (“The phrases' legally cognizable interest' [for mootness] and ‘injury in fact' [for standing] are for all practical purposes synonymous.”). An actual controversy requires more than a mere procedural injury; there must be an imminent, non-speculative risk to the plaintiff's concrete interest. Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009) (holding that the plaintiff did not have standing in an environmental case because he only alleged a procedural violation and did not have a sufficiently concrete interest in the affected land).
A. Application
Plaintiffs have a concrete interest in the Allotments and challenged six Government actions related to the 2021 grazing decision. After the Complaint was filed, the Government voluntarily issued the Notice of Rescission of the grazing decision, stated the protest period was improperly shortened, and started a new EIS process. Notice of Rescission; 86 Fed.Reg. 68,682 (initiating EIS process); FONSI Withdrawal.
After these actions, the Ranch cannot use the Allotments for grazing livestock, does not hold a grazing preference, and may not install or remove range improvements in the Allotments. The Ranch cannot alter the landscape of the Allotments under the rescinded permit. Without these alterations, Plaintiffs cannot allege any non-speculative imminent injury to their use and enjoyment of the Allotments. See Compl. ¶¶ 14-18, 22, 122-47. While the Government has not revoked or superseded the EA yet, any procedural injury the EA caused cannot constitute a live controversy without a corresponding injury in fact to a concrete interest. Summers, 555 U.S. at 497 (holding that the plaintiff did not have standing based on a procedural violation because he did not allege an injury to a sufficiently concrete interest in the land).
A case is also moot when a court cannot grant effective relief for the alleged violation. Forest Guardians, 329 F.3d at 1094. And for a court to grant effective relief, it must be able to effectively review the agency's decision. Env't Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 867-71 (9th Cir. 2022). For an agency decision to be reviewable under general Article III principles, it must be at a sufficient resting place without needing further factual development. Id. (holding that review of the agency's EA and FONSI was ripe under Article III because those decisions-in that factual context-marked the end of the agency's review of the project's environmental impacts). Here, the Government's voluntary acts make it clear the Government is still considering the environmental impacts of the grazing decision and that the Government's later decisions will further develop the factual record. Thus, the Court cannot effectively review the Government's decision under general Article III principles.
While the legal issue in this case is mootness, not ripeness, the discussion in Environmental Defense Center still shows this Court's review of BLM's ongoing environmental analysis would be impracticable and lack tangible impact.
Finally, the Court will only be able to grant an effective remedy in this case if the Government's challenged acts recur. Otherwise, any injunction or declaration will not affect the parties, and the case will be moot. See Forest Guardians, 329 F.3d at 1094 (a case is moot when a court cannot grant effective relief); e.g., Brach v. Newsom, 38 F.4th 6, 11 (9th Cir. 2022) (dismissing claims challenging California's COVID school closures as moot when the closures were revoked because “there [was] no longer any state [decision] for the court to declare unconstitutional or to enjoin”). Just like Brach, there is no longer a Government decision that has a tangible impact this Court can declare unlawful or enjoin, and the Government's challenged acts must recur for the Court to grant any effective relief.
For these three reasons, the Court must analyze this case under voluntary cessation and determine whether it is absolutely clear that the Government's challenged conduct is not reasonably likely to recur.
II. Voluntary Cessation
The parties' arguments correctly focus on the voluntary cessation standard. Having considered the parties' arguments, the Court concludes that: (1) the Government failed to meet its heavy burden of demonstrating that the rescission was not due to litigation; (2) the Government made it absolutely clear they will not base a new decision on the challenged EA or shorten the protest period, so Plaintiff's claims relating to those issues are moot under the voluntary cessation standard; and (3) the Government has not made similar representations to make it absolutely clear its other challenged acts will not recur and, as a result, the remaining claims are live.
A. Applicable Law
“The Supreme Court has long held that a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” Brach, 38 F.4th at 12 (quotations omitted). The defendant has the burden to establish that a live case has become moot. W. Virginia v. Env't Prot. Agency, 142 S.Ct. 2587, 2607 (2022). But for voluntary cessation to apply, the defendant's actions to end the challenged conduct must be “in response to the litigation.” Brach, 38 F.4th at 12.
When the defendant's voluntary conduct causes the mootness, the defendant's burden of proving mootness is heavy: the defendant must show “it is absolutely clear that” their challenged conduct is “not reasonably . . . expected to recur.” W. Virginia, 142 S.Ct. at 2607 (quotations omitted). Otherwise, mooting the case will leave “the defendant free to return to [their] old ways.” Laidlaw, 528 U.S. at 170.
In determining voluntary cessation, the government has the same burden as private litigants. Brach, 38 F.4th at 12. But courts do “treat the voluntary cessation” of “government officials with more solicitude than similar action by private parties. This is no bare deference: [courts] probe the record to determine whether the Government has met its burden, even as [courts] grant it a presumption of good faith.” Id. at 12-13.
A government agency's voluntary actions will not moot a case when it makes no commitment to abandon the challenged conduct. W. Virginia, 142 S.Ct. at 2607. In West Virginia, the plaintiffs challenged the EPA's use of generation shifting in a clean air act rule. Id. The EPA prevailed on appeal and moved to stay the appellate court's judgment while it decided whether to replace the challenged rule. The Supreme Court held this stay did not moot the case because rather than demonstrate a commitment to abandon the challenged conduct (generation shifting), the agency argued to the Supreme Court that generation shifting was lawful. Id.
Generation shifting marked a change in clean air act requirements from requiring coal plants operate more cleanly to requiring coal plants to reduce their own production of electricity or subsidize cleaner sources of energy, thus shifting electricity generation to cleaner sources. Id. at 2603.
In contrast, the Ninth Circuit found that the Forest Service's “Clarification to Decision Notice” showed the Service was not reasonably likely to pursue its challenged conduct because the clarification admitted the conduct was wrong and overrode the earlier challenged decision. Forest Guardians, 329 F.3d at 1094-95. Similarly, the government carried its burden of showing COVID school closures were not reasonably likely to recur when it unequivocally renounced future closures and allowed the emergency legislation authorizing them to expire. Brach, 38 F.4th at 13-14. Both Ninth Circuit cases show the government carries its burden when it represents that it will avoid the challenged conduct in the future and its actions remain consistent with that representation.
B. Application
The Government first argues voluntary cessation does not apply because these voluntary acts are due to a change in administration and not this litigation. Defs.' Reply in Supp. of Mot. Dismiss 9-10, ECF 25. This argument is unpersuasive for three reasons: First, the Government has admitted that its voluntary acts were at least partially due to this litigation. See FONSI Withdrawal 2 (“In light of [the new EIS] and ongoing litigation, we are withdrawing the FONSI”) (emphasis added); see also Notice of Rescission (published one day after the Complaint was filed). Second, the Government bears the burden of proving mootness under voluntary cessation, and it produced no sworn statements from relevant decision makers or other direct evidence showing a change in administration was the sole cause of these voluntary actions. Finally, the Supreme Court recently applied the voluntary cessation standard when, like this case, the government changed its position after both litigation and a change in administration. See W. Virginia, 142 S.Ct. at 2607 (applying the voluntary cessation standard when the government voluntarily stopped enforcing a clean air act rule after both litigation and a change in administration). Accordingly, this Court concludes that the voluntary cessation exception applies to the Government's conduct. Plaintiffs' claims are not moot unless the Government demonstrates that it is absolutely clear that its challenged conduct is not reasonably expected to recur.
Next, the parties dispute whether the Government has made it absolutely clear that the challenged conduct is not reasonably expected to recur. Plaintiffs argue that the Government cannot demonstrate that its challenged conduct will not recur under West Virginia when it still plans to issue a new grazing decision rather than commit to no future grazing. See Pls.' Notice of Supp. Authority 3, ECF 36. The Government responds by stating that it “does not have to make any representation here about what action it may ultimately take in order to secure mootness, because NEPA is not concerned with outcomes, only process.” Defs.' Resp. to Pls.' Notice of Supp. Authority 2, ECF 37. Both parties' arguments sweep too broadly, as neither party focuses on Plaintiffs' specific claims in the litigation.
Plaintiffs challenge the following actions taken by the Government when issuing the 2021 grazing decision: (1) the Secretary prematurely assuming jurisdiction of the grazing decision before it became a “case” and improperly shortening the required protest period before issuing a final grazing decision, Compl. ¶¶ 109-121; (2) awarding the permit to an unqualified applicant under the Land Policy Act because the Ranch had a record of permit violations and other applicants did not, id. ¶¶ 122-129; (3) basing the final decision on a flawed and incomplete EA and related FONSI, id. ¶¶ 130-136; (4) failing to ensure the permit complied with applicable land use plans issued under the Land Policy Act, id. ¶¶ 137-141; and (5) issuing a permit that violates the Steens Act by not adequately protecting the Steens Management Area and misinterpreting the Steens Act to include an additional competing purpose of promoting viable and sustainable grazing operations. Id. ¶¶ 142-147. Plaintiffs seek declaratory and injunctive relief relating to each of these claims. Id. at 46.
To determine whether each of these claims are moot, the Court must “probe the record” to determine whether the Government has met its burden of demonstrating each of these challenged actions will not recur. Brach, 38 F.4th at 12.
The Government has publicly revoked the Ranch's grazing permit and stated it revoked the permit because it issued the permit without sufficient time for public protest. The Government has also revoked the FONSI supporting the permit and initiated a new EIS process to replace the prior EA. Like Forest Guardians and Brach, the Government has made representations publicly and to the Court, admitting the prior process was flawed and committing to a new process to cure these deficiencies. These representations make it absolutely clear the challenged conduct of issuing a final grazing decision without sufficient time for public protest and basing the grazing decision on the challenged EA and FONSI are not reasonably likely to recur. As a result, Plaintiffs' third claim and the part of Plaintiffs' first claim challenging the length of the protest period should be dismissed as moot.
In contrast, the Government has made no representations in this case that it incorrectly issued the grazing permit to the Ranch despite its history of violations or that the prior permit violated the Steen's Act or the Grouse Amendments to the applicable land use plans. Nor has the Government stated that the Secretary assuming jurisdiction before BLM made a decision was improper. The Government has also made no representations that it will avoid these challenged acts in the future. As a result, the Court cannot find that it is absolutely clear that the Government will not issue a grazing permit on the Allotments to the Ranch or issue a permit in line with the alleged violations to the Steen's Act or applicable land use plans. Nor can the Court find that the Secretary will not assume jurisdiction over the permit decision before BLM issues a decision. Like West Virginia, the Government has made no representations that it will avoid these challenged acts in the future. Thus, these claims are live.
The Government argues, “[Plaintiffs'] demand that BLM affirmatively state it will never authorize grazing” on the Allotments is beyond “any relief the Court could grant.” Defs.' Resp. to Pls.' Notice of Supp. Authority 2 n.1. While this statement is likely correct, it also misconstrues Plaintiffs' argument and the voluntary cessation standard. The reason Plaintiffs point out the Government has not affirmatively stated it will never authorize grazing on the Allotments is because if it had, then it would likely be “absolutely clear that” the Government's challenged conduct is “not reasonably . . . expected to recur.” W. Virginia, 142 S.Ct. at 2607. The fact that the Court likely cannot order the Government to make such a broad commitment does not relieve the Government from meeting its burden under the voluntary cessation standard.
For these reasons, the Government's Motion to Dismiss should be denied as to Plaintiffs' second, fourth, and fifth claims, along with the portion of Plaintiffs' first claim related to the Secretary prematurely assuming jurisdiction of the grazing decision.
III. Capable of Repetition yet Evading Review
Finally, this Court concludes that the capable of repetition yet evading review exception does not alter the Court's voluntary cessation analysis.
There is an exception to mootness when a plaintiff's claims are capable of repetition yet evade review. Native Vill. of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021). This exception has two requirements: “(1) the duration of the challenged action is too short to allow full litigation before it ceases or expires, and (2) there is a reasonable expectation that the plaintiffs will be subjected to the challenged action again.” Id. Unlike the general mootness and voluntary cessation standards, where the defendant has the burden, under the capable of repetition exception, the plaintiff has the burden of showing the challenged activity is reasonably likely to recur. Id. When a defendant's voluntary conduct is the source of mootness, it is unlikely the capable of repetition yet evading review exception to mootness will be material because it uses a higher standard of recurrence and places the burden on the plaintiff instead of the defendant asserting mootness. Compare id. (“under the capable of repetition prong of the exception to the mootness doctrine, the plaintiffs have the burden of showing that there is a reasonable expectation that they will once again be subjected to the challenged activity”) with W. Virginia, 142 S.Ct. at 2594 (“voluntary cessation does not moot a case” unless the defendant shows it is “absolutely clear that [their] allegedly wrongful behavior could not reasonably be expected to recur.”); see also Nuiqsut, 9 F.4th at 1215 (incorporating the factual circumstances used to analyze the capable of repetition yet evading review exception into the voluntary cessation analysis). On top of meeting this higher standard, the challenged conduct must evade review. Nuiqsut, 9 F.4th at 1209.
Here, Plaintiffs have failed to show a reasonable expectation that the Government will shorten the 15-day protest period or base a future grazing permit on the challenged EA. See Discussion § II supra. Thus, this exception does not alter the mootness analysis. Additionally, for a challenged action to evade review, its limited duration must be clear at the outset of the action. Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014). The Ranch would have received a ten-year grazing permit based on the decisions made when the Complaint was filed. Mot. Dismiss Ex. A; see also Compl. ¶ 29 (stating grazing permits usually last for ten years). Ten years is sufficient time for Plaintiffs to challenge the action. Thus, the limited duration of the challenged conduct was not clear at the outset of this action, and the challenged conduct will be reviewable if the Government makes a similar decision. See Bowen, 752 F.3d at 836 (this “exception is concerned not with particular lawsuits, but with classes of cases that, absent an exception, would always evade judicial review.”).
For these two reasons, the capable of repetition yet evading review exception does not alter the Court's analysis.
RECOMMENDATION
Defendants' Motion to Dismiss should be GRANTED for Plaintiffs' third claim and the portion of Plaintiffs' first claim that relates to the shortened protest period. Defendants' motion should otherwise be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.