Alaska v. U.S. Dep't of Agric.

17 F.4th 1224

State of ALASKA, Appellant

Alaska Electric Light & Power, et al., Appellees

v.UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Appellees

No. 17-5260

C/w 17-5262, 17-5263

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 2021

Decided November 16, 2021

Mary Hunter Gramling, Assistant Attorney General, Office of the Attorney General for the State of Alaska, argued the cause for appellants. On the joint briefs were Thomas E. Lenhart, Senior Assistant Attorney General, Stephen J. Kennedy, Steven W. Silver, James F. Clark, III, Julie A. Weis, and Mark C. Rutzick.

Julie A. Weis was on the joint brief for intervenor-appellants Alaska Forest Association and Southeast Conference. With her on the joint brief was Mark C. Rutzick.

John L. Smeltzer, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General at the time the brief was filed, Eric Grant, Deputy Assistant Attorney General at the time the brief was filed, and Leslie Lagomarcino, General Attorney, U.S. Department of Agriculture,

Ian Fein argued the cause for intervenor-appellees Southeast Alaska Conservation Council, et al. On the brief were Thomas S. Waldo, Eric P. Jorgensen, and Nathaniel S.W. Lawrence. Katharine S. Glover entered an appearance.

Before: Srinivasan, Chief Judge, Pillard, Circuit Judge, and Randolph, Senior Circuit Judge.

Randolph, Senior Circuit Judge:

At the heart of this protracted dispute is the "Roadless Rule," a national regulation of the Department of Agriculture's Forest Service issued in early 2001.

After years of study, the Forest Service issued this Rule prohibiting (with some exceptions) all "road construction, road reconstruction, and timber harvesting in inventoried roadless areas on National Forest System lands." 66 Fed. Reg. 3244, 3244 (Jan. 12, 2001). An environmental impact statement, assembled to comply with the National Environmental Policy Act, 42 U.S.C. § 4332(C), preceded the Rule's issuance.

In the State of Alaska there are two national forests—the Tongass and the Chugach, both of which comprise vast areas of the State.

The State of Alaska, with the support of numerous intervenors, brought an action¹ contesting the Roadless Rule's legality. The district court dismissed the case on statute-of-limitations grounds. Our court reversed and remanded. Alaska v. U.S. Dep't of Agric. , 772 F.3d 899 (D.C. Cir. 2014). On remand, the district court granted the summary-judgment motions of the Agriculture Department and its intervenor supporters. Alaska and the plaintiff-intervenors noted appeals.

After briefing but before oral argument, the Agriculture Department granted Alaska's request to conduct a rulemaking to determine—actually, to redetermine² —whether to exempt the Tongass National Forest from the Roadless Rule. See Roadless Area Conservation; National Forest System Lands in Alaska, 83 Fed. Reg. 44,252 (proposed Aug. 30, 2018). Our court ordered the appeals stayed pending completion of the rulemaking.

On October 29, 2020, the Agriculture Department issued a final rule exempting the Tongass from the Roadless Rule, the reasons for which are not our concern in this appeal. See 36 C.F.R. § 294.50 (2021) ; Special Areas; Roadless Area Conservation; National Forest System Lands in Alaska, 85 Fed. Reg. at 68,688.

Alaska's appellate brief focused entirely on the Roadless Rule's impact on the Tongass National Forest. But the Rule no longer applies to the Tongass.

A "well-settled principle of law" is this: "when an agency has rescinded and replaced a challenged regulation, litigation over the legality of the original regulation becomes moot." Akiachak Native Cmty. v. U.S. Dep't of Interior , 827 F.3d 100, 113 (D.C. Cir. 2016). Finding a case "plainly moot" when the agency order has been "superseded by a subsequent ... order" is so routine that our court usually "would handle such a matter in an unpublished order." Freeport-McMoRan Oil & Gas Co. v. FERC , 962 F.2d 45, 46 (D.C. Cir. 1992). We do not follow that practice here because Alaska and the plaintiff-intervenors mount two arguments against declaring their case moot.

I.

Alaska's first argument invokes the "voluntary cessation" doctrine. This doctrine "prevent[s] a private defendant from manipulating the judicial process by voluntarily ceasing the complained of activity, and then seeking a dismissal of the case, thus securing freedom to ‘return to his old ways.’ " Clarke v. United States , 915 F.2d 699, 705 (D.C. Cir. 1990) (en banc); see, e.g. , City of Erie v. Pap's A.M. , 529 U.S. 277, 288, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). The en banc court in Clarke added that it had "serious doubts" about whether the "voluntary cessation" rationale applied to cases like the one now before us: "it would seem inappropriate for the courts either to impute such manipulative conduct to a coordinate branch of government, or to apply against that branch a doctrine that appears to rest on the likelihood of a manipulative purpose." 915 F.2d at 705. The court reiterated that concern in National Black Police Ass'n v. District of Columbia , 108 F.3d 346, 352 (D.C. Cir. 1997).

Even though the Roadless Rule does not apply to the Tongass, Alaska believes that under the "voluntary cessation" doctrine the case is not moot because the Rule might be reimposed. Alaska points out that after the 2020 Presidential election, the Agriculture Department announced its intention to propose a new rulemaking that would "repeal or replace the 2020 Tongass Exemption" from the Roadless Rule.³

We will deal with this prospect in a moment, but before we do, a few words are in order about American Bankers Ass'n v. National Credit Union Administration , 934 F.3d 649 (D.C. Cir. 2019). The American Bankers opinion came up in oral argument. Neither Alaska nor the plaintiff-intervenors had cited the case in their oppositions to the government's suggestion of mootness. This is understandable. Alaska pitched its argument against mootness on the "voluntary cessation" doctrine. But American Bankers was not by any stretch a voluntary cessation case. The words "voluntary" and "cessation" do not appear in the opinion.

The district court in American Bankers ordered the contested regulatory provision to be "vacated and set aside." Order at 2, No. 16-2394 (D.D.C. Mar. 29, 2018), ECF No. 34. So there was nothing "voluntary" about the federal agency's ceasing to apply that provision after the order issued. See Am. Bar. Ass'n v. FTC , 636 F.3d 641, 648 (D.C. Cir. 2011) ; Campbell v. Clinton , 203 F.3d 19, 34 n.14 (D.C, Cir. 2000) (Randolph, J., concurring in the judgment); see also Mokdad v. Sessions , 876 F.3d 167, 171 (6th Cir. 2017).⁴ It follows that the rationale for the "voluntary cessation" doctrine as stated in the en banc Clarke opinion and other decisions—that is, to prevent manipulation of the judicial process—did not exist in American Bankers . Nor did American Bankers hold that mere planned reinstatement suffices to avoid mootness. That appeal remained live because the district court's judgment barred the agency from its planned reinstatement of its former rule unless this court reversed the vacatur. Here, by contrast, the Agriculture Department voluntarily exempted the Tongass from the Roadless Rule and may engage in another rulemaking to adjust or repeal that exemption without any action on our part. Unlike American Bankers , a ruling on the merits here would be advisory.

We therefore move on to Alaska's argument that the prospect of a new regulation reimposing the Roadless Rule on the Tongass saves the case from mootness. One problem with this argument is that it contradicts not only Akiachak Native Community and the many cases it cites, but also National Wildlife Federation v. Hodel , 839 F.2d 694, 742 (D.C. Cir. 1988), a decision so directly on point that it deserves to be quoted at length:

[T]he Secretary suspended the road regulations in their entirety ... [and] announced his intent "to propose new regulations ...." Consequently, the Secretary now argues that in light of the suspension, Industry's challenge is moot. Industry disagrees, asserting that the Secretary clearly intends to repropose the same regulation ... and the issue is one "capable of repetition, yet evading review" as in Southern Pacific Terminal Co. v. ICC , 219 U.S. 498, 515 [31 S.Ct. 279, 55 L.Ed. 310] (1911).

Industry's claim notwithstanding, the Secretary's withdrawal of the regulation was not a clever manipulation of regulatory and appellate procedure designed to escape review; it was merely a prudent response to the district court's remand order. Although the road reclamation requirement is certainly "capable of repetition," if and when the Secretary repromulgates [it], the regulation will be reviewable at that time. Unlike the ICC order at issue in Southern Pacific , [these] regulations are in no danger of expiring before judicial review is complete. It would be entirely inappropriate for this court to do as Industry suggests and issue an advisory opinion to guide the Secretary's rulemaking.

(citations omitted).

Here too it "would be entirely inappropriate for this court to do as [Alaska] suggests and issue an advisory opinion to guide the [Agriculture Department's] rulemaking," if there is one. Id. We cannot presume that any such future rulemaking will repeal the Tongass exemption in toto . Doing so would be inconsistent with the purpose of notice-and-comment rulemaking under the Administrative Procedure Act, see, e.g. , Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ; Make the Road N.Y. v. Wolf , 962 F.3d 612, 634 (D.C. Cir. 2020), and with the function of environmental impact statements under NEPA, see, e.g. , Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 351-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ; Am. Rivers v. FERC , ...