## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 20 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WYOMING TIMBER INDUSTRYASSOCIATION, a Wyoming nonprofit trade association; FRONTIERS OF FREEDOM-WYOMING, a Wyoming non-profit organization, Plaintiffs-Appellants,

v. No. 00-8016 UNITED STATES FOREST SERVICE; DANIEL R. GLICKMAN, in his official capacity as Secretary of the United States Department of Agriculture; MICHAEL P. DOMBECK, in his official capacity as Chief Forester of the United States Forest Service; LYLE K. LAVERTY, in his official capacity as Regional Forester, Region II, United States Forest Service; JACK A. BLACKWELL, in his official capacity as Regional Forester Region IV, United States Forest Service, Defendants-Appellees.

_________________ WYOMING OUTDOOR COUNCIL; BIGHORN FOREST USERS COALITION; SIERRA CLUB; WILDERNESS SOCIETY; GREATER YELLOWSTONE COALITION; NORTHWEST WYOMING RESOURCE COUNCIL; (D.C. No. 99-CV-1016) (D. Wyo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Richard Owen, United States Distric t Judge, Southern District of New York, sitting by designation. 2 BIODIVERSITY ASSOCIATES; WYOMING WILDERNESS ASSOCIATION; AMERICAN WILDLANDS; AMERICAN LANDS ALLIANCE; PACIFIC RIVERS COUNCIL; OREGON NATURAL RESOURCES COUNCIL; U.S. PUBLIC INTEREST RESEARCH GROUP,
Intervenors. PACIFIC LEGAL FOUNDATION, Amicus Curiae.

ORDER AND JUDGMENT *

Before SEYMOUR, BRISCOE, Circuit Judges, and OWEN , District Judge **

. Appellants Wyoming Timber Industry Association (WTI A) and Frontiers of Freedom-Wyoming (FOF) appeal the district court’s ruling that they lacked standing to assert a declaratory relief action. Th e action challenged a “final interim rule” promulgated by the United States Fore st Service (Forest Service)3

that temporarily suspended road construction and re construction in many unroaded areas of the National Forest System. The interim rule expired by its own terms on September 1, 2000, after appellate bri efs were filed. We dismiss the appeal as moot.
I. On February 12, 1999, the Forest Service, the lead defendant, issued a final interim rule that suspended “new road construction projects, including temporary road construction, and road reconstruction projects ” within various enumerated areas of the National Forest System. See 64 Fed. Reg. 7290 (1999) (codified at 36 C.F.R. § 212.13 (1999)). The suspension was to become effective March 1, 1999, and last “until the Forest Service, after giv ing appropriate public notice and opportunity to comment, adopts its revised roadmanagement policy, or 18 months from the effective date of this rule, whichever is first.” See 36 C.F.R. § 212.13(d)(3). On April 5, 1999, WTIA, “a non-profit trade association whose membership is comprised of nineteen primary and sec ondary timber processing companies,” and FOF, “a subsidiary of Frontiers of Freedom, a non-profit corporation formed for purposes of, inter alia, edu cation, research, advising and monitoring governmental activity for its members an d the general public” filed this action. See Wyo. Timber Indus. Ass’n v. United States Forest Serv. , 80 F.4

Supp. 2d 1245, 1249-50 (D. Wyo. 2000). On June 29, 1999, the district court granted numerous interest groups leave to intervene as a single party on the side of the Government. The gravamen of appellants’ July 6, 1999, first ame nded complaint is that the interim rule violates the National Forest Manag ement Act (NFMA). The NFMA “requires the Secretary of Agriculture to ‘dev elop, maintain, and, as appropriate, revise land and resource management pl ans for [each forest unit] of the National Forest System.’” Ohio Forestry Ass’n, Inc. v. Sierra Club , 523 U.S. 726, 728 (1998) (citing 90 Stat. 2949, as renumbere d and amended, 16 U.S.C. § 1604(a)). For each forest unit, “[f]orest manage ment occurs at two distinct levels.” Colo. Envtl. Coalition v. Dombeck , 185 F.3d 1162, 1167 (10th Cir. 1999). “At the first level, the Forest Service dev elops the Forest Plan, a broad, programmatic document, accompanied by an environmen tal impact statement and public review process conducted in accordance with the National Environmental Policy Act.” Id. at 1167-68. “At the second level, the Forest Serv ice implements the Forest Plan by approving (with or without modif ication) or disapproving particular projects.” Id. at 1168. These “particular projects”“must be cons istent with the Forest Plan, and are subject to further National Environmental Policy Act review.” Id. (citations omitted); see also 16 U.S.C. § 1604(i) (“Resource plans and permits, contracts, and other instruments for the use and occupancy of5

National Forest System lands shall be consistent wi th the land management plans.”). Ultimately, appellants read the NFMA to require that any regulatory decision be made on a forest-by-forest basis and to prohibit any regulatory decision that affects more than one national forest . Since the interim rule was designed broadly to affect many areas within the National Forest System, appellants contended it violated the NFMA. More sp ecifically, appellants argued the interim rule is a “significant amendment or rev ision to the forest plans” and “not in compliance with current forest plans.” Apl ts. App. at 32 ¶ 23. Whether a forest plan amendment is “significant” is importantbecause, in general, forest plans can “be amended in any manner whatsoever afte r final adoption after public notice.” 16 U.S.C. § 1604(f)(4). If, however, the amendment “would result in a significant change in such plan,” the Forest Service is statut orily required to comply with the procedures set forth in 16 U.S.C. § 1604. Id. (emphasis added). Appellants alleged that the interim rule violated the NFMA because it was in effect a significant amendment to all forest plans and was not adopted in accordance with Section 1604. Appellants also cont end that promulgation of the interim rule violated the Wyoming Wilderness Act (W WA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). Most of the alleged violations stem from their read ing of the NFMA. Appellants6

further asserted that the interim rule created de f acto “buffer zones,” which are prohibited by the WWA. On January 5, 2000, the district court dismissed th e action with prejudice, holding appellants lacked standing to bring their claims. See Wyo. Timber , 80 F. Supp. at 1260-61. Appellants filed a notice of app eal before final judgment was entered. We have jurisdiction to hear this appeal because there is no question that the district court’s order was final. See Burlington N. R.R. Co. v. Huddleston , 94 F.3d 1413, 1416 n.3 (10th Cir. 1996) (holding “[i]f no question exists as to the finality of the district court’s d ecision, the absence of a Rule 58 judgment will not prohibit appellate review”). On appeal, appellants contend (1) the district court erred in finding they lacked standing; and (2) the challenged rule was adopted in violation of the NFMA and the W WA. The interim rule expired on September 1, 2000. On January 12, 2001, the final rule establishing “prohibitions on road const ruction, road reconstruction, and timber harvesting in inventoried roadless areas on National Forest System lands” appeared in the Federal Register. Roadless Area Conservation, 66 Fed. Reg. 3244 (Jan. 12, 2001). Although the rule was t o become effective March 13, 2001, the effective date has been postponed at leas t sixty days to May 12, 2001.
See 66 Fed. Reg. 8899 (Feb. 5, 2001). The Forest Serv ice and the intervenors have filed motions to dismiss this appeal as moot.7 II. “‘Mootness is a threshold issue because the existen ce of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.’” Out of Line Sports, Inc. v. Rollerblade, Inc. , 213 F.3d 500, 501 (10th Cir. 2000) (quoting McClendon v. City of Albuquerque , 100 F.3d 863, 867 (10th Cir. 1996)). Federal courts have “no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before [them].” Church of Scientology of Cal. v. United States , 506 U.S. 9, 12 (1992) (internal quotations omitte d). For that reason, a party must seek relief that is “capable of addressing the alleged harm.” Nat’l Advertising Co. v. City & County of Denver , 912 F.2d 405, 411 (10th Cir. 1990); see also McAlpine v. Thompson , 187 F.3d 1213, 1216 (10th Cir. 1999) (“A claim will be deemed moot unless a p roper judicial resolution settles some dispute which affects the behavior of the defendant toward the plaintiff.” (internal quotations omitted)). This r equirement exists “at all stages of the proceedings,” not only at the inception of the case. Nat’l Advertising , 912 F.2d at 411. Thus, “if an event occurs while a cas e is pending on appeal that makes it impossible for the court to grant ‘any eff ectual relief whatever’ to a prevailing party, the appeal must be dismissed.” Church of Scientology , 506 U.S.
at 12.8

Here, key events have occurred while this case pend ed on appeal which potentially alter this court’s ability to provide appellants the relief they seek. The source of appellants’ grievance, the interim rule, has expired. This court cannot grant appellants’ request for an order that the For est Service rescind the interim rule and an order enjoining the Forest Service from further activity implementing the rule . Since their ultimate relief cannot be granted, there is little or no purpose for reviewing appellants’ declaratory relie f claims. Appellants are concerned that “through its mootness claims, the Fo rest Service seeks to abdicate any responsibility for . . . continuing effects [of the interim rule] and evade accountability for its illegal actions.” Aplts. Re sponse to Motion to Dismiss at 5. Appellants argue a case is not moot if the action c omplained of continues to have “present adverse effects” such as continued postpon ement of the timber sales. Aplts. Br. at 4. This phrase is culled from a Supr eme Court discussion of standing, which is similarly based upon the limitat ions of Article III authority but is decided under a different legal standard. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc. , 528 U.S. 167, 174 (2000). No Supreme Court or Tenth Circuit jurisprudence supports a “continuing effect” test for mootness. The cases cited by appellants in support of this pr oposition did not consider the effects of the challenged conduct, but whether a re medy for that conduct remained available. See , e.g. , Church of Scientology , 506 U.S. at 13 (court9

retained “power to effectuate a partial remedy”); Northwest Envtl. Defense Ctr. v. Gordon , 849 F.2d 1241 (9th Cir. 1988) (effects of earlierlaw could be countered by later action). While appellants ultim ately seek relief of financial damages in the form of timber sales offered by the Forest Service, they cannot request a court to order those sales. The only rel ief sought was recission of the interim rule and an injunction against its enforcem ent, and those remedies retain no real force in the wake of expiration of the inte rim rule. In an attempt to save their action, appellants further contend this appeal fits within one of the two exceptions to the mootne ss doctrine. The first exception is for voluntary cessation of a challenged action. See ARW Exploration Corp. v. Aguirre , 947 F.2d 450, 452 (10th Cir. 1991). This exception exists to counteract the potential for a defendant to cease illegal action long enough to render a lawsuit moot and then resum e the illegal conduct. It is inapposite here since the expired interim rule cann ot be easily repeated. The second exception is for challenges to conduct “capable of repetition yet evading review.” See S. Utah Wilderness Alliance v. Smith , 110 F.3d 724, 729 (10th Cir. 1997) . This exception is only to be used in exceptional situations. See White v. Colo. , 82 F.3d 364, 366 (10th Cir. 1996). Such exceptio nal circumstances arise “where two elements combine: (1) the challenged ac tion was in its duration too short to be fully litigated prior to its cessation or expiration; and, (2) there was a10

reasonable expectation that the same complaining party would be subjected to the same action again.” Cent. Wyo. Law Assocs., P.C. v. Denhardt , 60 F.3d 684, 686 (10th Cir. 1995). Appellants argue “because the duration of the inter im rule was too short for the case to be fully litigated prior to its exp iration,” the Forest Service’s alleged violations clearly “evade review.” Aplts. Response to Motion to Dismiss at 14. However, this argument is in direct contrad iction of appellants’ contentions in their “capable of repetition” argume nt. Assuming that the final rule is identical to the interim rule (a fact that is at this point unknown), and therefore suffers the same alleged infirmities, it is unclear how the issue will evade review. There remains for our consideration the anticipated effect of the final rule and whether considerations of judicial economy woul d mitigate toward our retention of this appeal to address issues now rais ed as regards the interim rule that appellants would likely continue to assert as regards the final rule. See Nat’l Iranian Oil Co. v. Mapco Int’l, Inc. , 983 F.2d 485, 490 (3d Cir. 1992). There is no bright line test for determining whether the “same” statutory challenge would be present in another suit. A challenge to an inte rim rule may proceed if the new rule reproduces the old rule “word-for-word,” Tollis, Inc. v. San Bernadino County , 827 F.2d 1329, 1331-32 (9th Cir. 1987), but fails as moot if there are11

any relevant changes, see Bunker Ltd. P’ship v. United States , 820 F.2d 308, 312 (9th Cir. 1987). The new road management rule will not take final effect until at least May 2001. See 66 Fed. Reg. 8899 (Feb. 5, 2001). A two-month del ay in its finalization ordered in conjunction with the change in Presidential administrations strongly hints that changes may sti ll be made. If appellants want to challenge the validity of the new rule, they mus t wait until that rule is finalized. Dismissal as moot is appropriate in this case. Wer e the court to grant the relief requested, it would have no ultimate effect. See Phelps v. Hamilton , 122 F.3d 885, 891 (10th Cir. 1997). Further, appellant s’ claims do not fall within either of the two exceptions to the mootness doctri ne. The appeal is DISMISSED as moot. Entered for the Court Per Curiam