Donohoe v. United States Forest Serv.

1

PAUL DONOHOE; CATHY DONOHOE; TORIAN DONOHOE; KYLE DONOHOE; ANNA DONOHOE; DAVID ARTHUN; KAYCE ARTHUN; CASTLE CREEK RANCH, L.P., Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; MARY ERICKSON, Forest Supervisor; KEN COFFIN, District Ranger, Defendants-Appellees.

No. 22-35380

United States Court of Appeals, Ninth Circuit

July 6, 2023

NOT FOR PUBLICATION

Argued and Submitted June 6, 2023 Seattle, Washington

Appeal from the United States District Court for the District of Montana No. 1:20-cv-00137-SPW Susan P. Watters, District Judge, Presiding

Before: SCHROEDER, CALLAHAN, and BEA, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge CALLAHAN.

MEMORANDUM ^[*]

Paul and Cathy Donohoe; Torian Donohoe; Kyle and Anna Donohoe David and Kayce Arthun, and Castle Creek Ranch L.P. (the "Donohoes") appeal the district court's grant of summary judgment in favor of the United States Forest Service ("USFS") in an action alleging that USFS violated the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), and the National Forest Management Act ("NFMA") in approving two projects: the "Bridge Project" and the "Trail Project." USFS has moved to dismiss the appeal as moot.

(1) The motion to dismiss is granted only as to the NEPA claims. While "defendants in NEPA cases face a particularly heavy burden in establishing mootness," Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001), in this case there is no present controversy as to which effective NEPA relief can be granted, and the claims are moot. See Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008). The Bridge Project was completed in the summer of 2019 and the Trail Project was completed in October of 2022. Setting aside the Decision Memo and other documents authorizing the Projects would have no effect since there is no future activity to enjoin and there appears no other relief could be ordered to remedy the alleged harm. See Native Vill. of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021). Neither party has suggested that the "voluntary cessation" or the "capable of repetition while evading review" exceptions to mootness apply here. We therefore vacate the district court's decision as to the NEPA claims and remand with instructions to dismiss the claims as moot.

(2) The district court declined to exercise jurisdiction over the ESA claims because the Donohoes did not send a second 60-day notice of intent letter following USFS's consultation with the Fish and Wildlife Service ("FWS"). Such notice was required. See 16 U.S.C. § 1540(g)(2)(A)(i); Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650-51 (9th Cir. 2015). The Donohoes' initial notice of intent letter complained that USFS violated the ESA when it failed to take into account certain impacts the Trail Project might have on grizzly bears and failed to engage in formal consultation with the FWS. As a result, USFS revised its analysis in its 2020 Biological Assessment and consulted with the FWS. The Donohoes did not send a second notice of intent letter following USFS's consultation with FWS.

The Donohoes rely on the one-page June 10, 2020 letter that was sent before the consultation was complete, and states that the 2020 Revised Biological Assessment remained flawed or incomplete. The Donohoes were "not required to list every specific aspect or detail of every alleged violation," Cmty. Ass'n for Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002) (internal quotation omitted), but the June 10, 2020 letter failed to describe any particular inadequacy. The record does not suggest that the Donohoes sent another letter or otherwise ever informed USFS that specific ESA violations remained after the consultation process was completed. Assuming the ESA claims are not moot, we must hold that the district court correctly ruled it lacked jurisdiction to consider them. The motion to dismiss is denied as to the ESA claims and the district court's judgment as to those claims is affirmed.

VACATED in part, AFFIRMED in part.

CALLAHAN, Circuit Judge, concurring in part and dissenting in part:

I agree with all but Part 2 of the memorandum disposition which concludes that the district court properly dismissed the ESA claims because the Donohoes failed to send a second 60-day notice of intent to sue letter following USFS's consultation with FWS. In my view, the Donohoe's letter dated June 10, 2020, when read in context with the first notice of intent letter, adequately provided USFS notice of the alleged ESA violations pursuant to the requirements of 16 U.S.C. § 1540(g). See, e.g., Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 997 (9th Cir. 2000) (holding that a reviewing court may examine both the notice itself and the behavior of its recipients to determine whether the party understood or reasonably should have understood the alleged violations based on the notice).

Here the violations outlined in Donohoes' original notice of intent letter included that (1) USFS had improperly applied screening criteria to the Projects to achieve its desired outcome; (2) USFS had not consulted with FWS even though the limited analysis rendered a "may affect but is not likely to adversely affect" ("NLAA") ESA-listed species; and (3) USFS's NLAA finding was based on an...