Filed: Mar. 03, 2008
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD M. FELDMAN, an individual; ROBERT LEE PUDDICOMBE, an individual; IN DEFENSE OF ANIMALS, Plaintiffs-Appellants, v. No. 06-55675 MARY BOMAR,* in her official D.C. No. capacity as the Director of the CV-05-04900-DT National Park Service; KATE FAULKNER, in her official capacity ORDER AMENDING as the Chief of Natural Resources OPINION AND Management at Channel Islands AMENDED National Park; NATIONAL PARK OPINION SERVICE,
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD M. FELDMAN, an individual; ROBERT LEE PUDDICOMBE, an individual; IN DEFENSE OF ANIMALS, Plaintiffs-Appellants, v. No. 06-55675 MARY BOMAR,* in her official D.C. No. capacity as the Director of the CV-05-04900-DT National Park Service; KATE FAULKNER, in her official capacity ORDER AMENDING as the Chief of Natural Resources OPINION AND Management at Channel Islands AMENDED National Park; NATIONAL PARK OPINION SERVICE, ..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD M. FELDMAN, an
individual; ROBERT LEE
PUDDICOMBE, an individual; IN
DEFENSE OF ANIMALS,
Plaintiffs-Appellants,
v. No. 06-55675
MARY BOMAR,* in her official D.C. No.
capacity as the Director of the CV-05-04900-DT
National Park Service; KATE
FAULKNER, in her official capacity ORDER
AMENDING
as the Chief of Natural Resources
OPINION AND
Management at Channel Islands
AMENDED
National Park; NATIONAL PARK
OPINION
SERVICE, a bureau of the US
Department of the Interior;
NATURE CONSERVANCY, an
international non-profit
corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Submitted November 8, 2007**
Pasadena, California
*Mary Bomar is substituted for her predecessor, Fran Mainella, as
Director of the National Park Service, pursuant to Fed. R. App. P.
43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1891
1892 FELDMAN v. BOMAR
Filed January 10, 2008
Amended March 3, 2008
Before: Kim McLane Wardlaw, Carlos T. Bea, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Wardlaw
1894 FELDMAN v. BOMAR
COUNSEL
Yano L. Rubinstein and Cindy J. Scribe, Rubinstein Law
Group, San Francisco, California, 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 & Nichol-
son, LLP, San Francisco, California, for the defendants-
appellees.
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 seek-
ing to enjoin the feral pig eradication,” add footnote No. 3 as
follows: “3Because Appellants concede the pigs could not
FELDMAN v. BOMAR 1895
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 unnec-
essary 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 adopt-
ing 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 eco-
logical 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 develop-
1
The district court denied Appellants’ motion for preliminary injunc-
tion, and we affirmed. Feldman v. Mainella, 166 F. App’x 969 (9th Cir.
2006).
1896 FELDMAN v. BOMAR
ment of the eradication program and do not seek compensa-
tion 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 Moun-
tain 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 arche-
ological 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 spe-
cies, 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 abun-
dant 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 non-
FELDMAN v. BOMAR 1897
native 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 dis-
missed the possibility of “[l]ive capture of feral pigs and relo-
cation 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 extermi-
2
The reintroduction of bald eagles to Santa Cruz Island was not part of
the SCIPRP. In 2002, a “Feasibility Study for Reestablishment of Bald
Eagles on the northern Channel Islands, California” proposed releasing
young bald eagles to Santa Cruz Island and monitoring contaminants in
their eggs and food.
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.
1898 FELDMAN v. BOMAR
nate 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 cumu-
lative 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 F. App’x 969 (9th
Cir. 2006) (mem.). District Judge Tevrizian then entered sum-
mary 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 preju-
diced 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 pro-
fessional hunting firm from New Zealand that spe-
cializes 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
FELDMAN v. BOMAR 1899
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 con-
ceded they “cannot present any evidence indicating that pigs
remain on the Santa Cruz Island.”
II
[1] 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, 121-22 (1974).
Nonetheless, “a case or controversy exists justifying declara-
tory 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 prejudice
to the existing interests of the parties.”
Id. (emphasis in origi-
nal) (internal quotation and alteration omitted). “The basic
question in determining mootness is whether there is a present
controversy as to which effective relief can be granted.” Gor-
don, 849 F.2d at 1244.
[2] This motion presents the question of whether, in light
of the successful eradication of the feral pigs, any “effective
relief” for the alleged procedural violations exists. We have
found “live” controversies in environmental cases even after
the contested government projects were complete. In each of
those cases, however, we could nonetheless remedy the
alleged harm. E.g., Or. Natural Res. Council v. U.S. Bureau
1900 FELDMAN v. BOMAR
of Land Mgmt.,
470 F.3d 818, 821 (9th Cir. 2006) (finding
that “an appropriate [Environmental Assessment] can yet
yield effective post-harvest relief” for challenges to a timber
harvesting project); Neighbors of Cuddy Mountain v. Alexan-
der,
303 F.3d 1059, 1065-66 (9th Cir. 2002) (“If warranted,
[the district court] might order the Forest Service to adjust
future timber plans to compensate for this allegedly unlawful
one.”); Cantrell v. City of Long Beach,
241 F.3d 674, 678-79
(9th Cir. 2001) (finding that a challenge to the destruction of
historic buildings was not moot because, although the build-
ings had already been destroyed, the court could still craft a
remedy to mitigate the injury to the birds that had been inhab-
iting them); Tyler v. Cuomo,
236 F.3d 1124, 1137 (9th Cir.
2000) (allowing challenge to the development of a housing
project that was already built because the project could still be
modified to grant the plaintiff relief); West v. Sec’y of the
Dep’t of Transp.,
206 F.3d 920, 925 (9th Cir. 2000) (allowing
challenge to the construction of a highway that was already in
use because the district court could still order the highway
closed or taken down); Pyramid Lake Paiute Tribe of Indians
v. Hodel,
882 F.2d 364, 368 (9th Cir. 1989) (allowing chal-
lenge to a completed governmental action that threatened a
certain species of fish because the court could still remedy the
harm through protections in future spawning seasons); Gor-
don, 849 F.2d at 1245 (same); Columbia Basin Land Prot.
Ass’n v. Schlesinger,
643 F.2d 585, 591 n.1 (9th Cir. 1981)
(finding that a suit to enjoin construction of a power line was
not moot because, although it had been built, it could still be
removed). The common thread in these cases is that “the vio-
lation complained of may have caused continuing harm and
. . . the court can still act to remedy such harm by limiting its
future adverse effects.” Gor
don, 849 F.2d at 1245. In such a
scenario, “the parties clearly retain a legally cognizable inter-
est in the outcome.”
Id.
[3] Appellants’ claim for declaratory relief does not fall
within this scenario. They do not face a continuous, remedia-
ble harm that concretely affects their “existing interests.”
FELDMAN v. BOMAR 1901
Headwaters, 893 F.2d at 1015. Appellants have never con-
tested that the presence of feral pigs on Santa Cruz Island
endangered important archeological and ecological resources;
rather, they simply desired an alternative means of resolving
the problem. Now that the pigs have been killed, Appellants
have suffered whatever harm could conceivably result from
the challenged agency action. See Doe v. Madison Sch. Dist.
No. 321,
177 F.3d 789, 798 (9th Cir. 1999) (en banc) (holding
that a student’s claims for injunctive and declaratory relief
against a school’s graduation prayer policy were moot once
the student graduated because he or she had “already . . . suf-
fered any injury that would result from the alleged forced par-
ticipation in prayers [in the] graduation ceremony”). Because
we cannot resurrect the pigs, nor retroactively remedy any
pain that they might have felt from being shot, nor take any
other action to prevent or undo the eradication at issue here,
we lack the power to grant any effective relief. See Sierra
Club v. Penfold,
857 F.2d 1307, 1318 (9th Cir. 1988).
[4] Appellants argue that because neither we nor they can
be certain that every pig on the island has been killed, relief
might be granted as to any remaining pigs, if they happen to
exist. This argument is speculative at best. It is undisputed
that NPS’s “announcement was made after extensive monitor-
ing over the previous year to confirm that the island is pig-
free.” There is no evidence in the record that any pigs remain
on the island. Therefore, any alleged future harm to pigs that
survived the extermination is “ ‘so remote and speculative
that there is no tangible prejudice to the existing interests of
the parties.’ ”
Headwaters, 893 F.2d at 1015 (emphasis in
original) (quoting Super
Tire, 416 U.S. at 123) (alteration
omitted).
[5] Appellants next cite to Cuddy, Gordon, and Cantrell for
the proposition that we could still mitigate or reverse the dam-
age done. However, each of those cases involved challenged
government projects that had a secondary effect on the
environment—that the government action was complete did
1902 FELDMAN v. BOMAR
not preclude the court from ordering the government to miti-
gate or reverse these secondary effects. In Gordon, for exam-
ple, where the government’s action endangered several
species of fish, the court could still mitigate the resulting
harm. 849 F.2d at 1245 (“If the 1986 measures did cause
damage to the coho population in violation of federal law, the
damage can still be repaired or mitigated—obviously not by
restoring the fish harvested in 1986, but by allowing more fish
to spawn in 1989.”). In this case, however, the alleged harm
resulting from the government’s action was not to some sec-
ondary population, it was to the specific pigs that were eradi-
cated. It is unclear how that harm can subsequently be
mitigated or reversed. Appellants’ suggestion that “pigs could
be reintroduced to the Island from the mainland” is nonsensi-
cal, because bringing more pigs from the mainland would
only force NPS to develop a new plan to deal with the uncon-
tested threat they pose to the island’s natural resources. At
best, these pigs would be brought to the island only so that
they could (1) be returned to the mainland, or (2) be sterilized
until the population died off. At worst, they would be brought
to the island only so that they could later be hunted and shot.
We fail to see how any of these options even remotely miti-
gates the harm Appellants allege in their complaint.
[6] Finally, Appellants argue that finding this case moot
would allow government agencies to evade their statutory
obligations:
Appellees cannot be absolved of liability for violat-
ing NEPA and CEQA by virtue of the fact that they
accomplished their illegal goal before the litigation
could run its course. To have such a result be
affirmed by the Court would be to give would-be
environmental policy violators carte blanche to com-
pletely disregard NEPA and CEQA so long as they
did so quickly—before plaintiffs and the courts
could stop them. Obviously, such a result would
FELDMAN v. BOMAR 1903
completely vitiate the effectiveness of such environ-
mental regulations.
We have some sympathy with this argument and our deci-
sions have made similar observations. See Columbia Basin,
643 F.2d at 591 n.1 (“If the fact that the towers are built and
operating were enough to make the case non-justiciable, . . .
then the BPA (and all similar entities) could merely ignore the
requirements of NEPA, build its structures before a case gets
to court, and then hide behind the mootness doctrine.”). How-
ever, those considerations are lessened in this case. First,
Appellants waited two years after the NPS plan was approved
before bringing their case to court. Second, they had an
opportunity to request both a temporary restraining order and
a preliminary injunction, which were denied and affirmed on
appeal. Third, NPS in this case was rushing to complete the
pig-extermination not to evade judicial review of its chal-
lenged procedure, but because the pigs’ continued presence
on the island was itself an environmental hazard. In any event,
policy considerations alone cannot invest jurisdiction where
there is no live controversy. Appellants must demonstrate a
remediable harm that effects their “existing interests.” Here,
no such harm exists.
[7] Finally, we must ask whether this case fits within the
mootness exception for claims that are “capable of repetition,
yet evading review.” “That exception applies when (1) the
duration of the challenged action is too short to allow full liti-
gation before it ceases, and (2) there is a reasonable expecta-
tion that the plaintiffs will be subjected to it again.” Padilla
v. Lever,
463 F.3d 1046, 1049 (9th Cir. 2006) (en banc) (inter-
nal quotation omitted). Appellants can satisfy neither of these
prongs. In particular, Appellants do not challenge any repeti-
tive government policy, but rather only the one-time process
by which the final EIS was approved in this case. Given the
procedural nature of Appellants’ allegations, and that the par-
ticular threat to the environment NPS faced here has been
resolved, we cannot reasonably expect that plaintiffs will be
1904 FELDMAN v. BOMAR
subjected to the same alleged procedural violations in the
future.
III
Because there is no longer a live controversy, we grant
Appellees’ motion and dismiss this appeal as moot.
DISMISSED.
