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

### July 11, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF WYOMING,

Plaintiff - Appellee,

v. No. 03-8058 UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE, Department of Agriculture; ANN M. VENEMAN, United States Department of Agriculture Secretary, in her official capacity; DALE N. BOSWORTH, United States Forest Service Chief Forester, in his official capacity, Defendants, and WYOMING OUTDOOR COUNCIL; THE WILDERNESS SOCIETY; SIERRA CLUB; BIODIVERSITY ASSOCIATES; PACIFIC RIVERS COUNCIL; NATURAL RESOURCES DEFENSE COUNCIL; DEFENDERS OF WILDLIFE; NATIONAL AUDOBON SOCIETY,

Defendants-IntervenorsAppellants,

----------------------------------------------2-

UNITED STATES OF AMERICA; PACIFIC LEGAL FOUNDATION; MOUNTAIN STATES LEGAL FOUNDATION; FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS; COLORADO MINING ASSOCIATION, UTAH MINING ASSOCIATION, WYOMING MINING ASSOCIATION, WESTERN BUSINESS ROUNDTABLE; AMERICAN FOREST & PAPER ASSOCIATION; STATE OF IDAHO; BLUERIBBON COALITION; IDAHO STATE SNOWMOBILE ASSOCIATION; AMERICAN COUNCIL OF SNOWMOBILE ASSOCIATIONS; WYOMING ASSOCIATION OF CONSERVATION DISTRICTS, WYOMING FARM BUREAU FEDERATION, WYOMING STOCK GROWERS ASSOCIATION, PETROLEUM ASSOCIATION OF WYOMING, BILLINGS COUNTY, NORTH DAKOTA, ROCKY MOUNTAIN REGION - PEOPLE FOR THE U.S.A.; and STATE OF UTAH, Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. No. 01-CV-86-B)-3-

James S. Angell of Earthjustice, Denver, Colorado ( Timothy J. Preso, Douglas L. Honnold, and Abigail M. Dillen of Earthjustice, Boz eman, Montana, with him on the briefs), for Appellants. Jennifer A. Golden, Senior Assistant Attorney Gener al (Patrick J. Crank, Attorney General; and Jay A. Jerde, Deputy Attorney General, with her on the briefs), Wyoming Attorney General’s Office, Cheyenne, Wyomin g, for Appellee. Robin L. Rivett and Emma T. Suárez Pawlicki of Paci fic Legal Foundation, Sacramento, California, filed an amicus curiae brie f for Pacific Legal Foundation. Paul M. Seby and William H. Caile of Friedlob, Sand erson, Paulson & Tourtillott, Denver, Colorado, filed an amici curiae brief for C olorado Mining Association, Utah Mining Association, Wyoming Mining Association , and the Western Business Roundtable. Thomas R. Lundquist and J. Michael Klise of Crowell & Moring LLP, Washington, D.C., with William R. Murray, Of Counse l, American Forest & Paper Association, Washington, D.C., filed an amicu s curiae brief for the American Forest & Paper Association. Kelly A. Johnson, Acting Assistant Attorney General , Jeffrey Bossert Clark, Deputy Assistant Attorney General, James C. Kilbourne and Andrew C. Mergen, Attorneys, Environment and Natural Resources Divisi on, United States Department of Justice, Washington, D.C., filed an a micus curiae brief for the United States of America. Patrick A. Parenteau and Julia LeMense Huff of Envi ronmental and Natural Resources Law Clinic, Vermont Law School, South Roy alton, Vermont, filed an amicus curiae brief for Environmental Ethics. Lawrence G. Wasden, Attorney General, Clive J. Stro ng, Chief, Natural Resources Division, Clay R. Smith and Steven W. Str ack, Deputy Attorneys General, Boise, Idaho, filed an amicus curiae brief for the State of Idaho. Paul A. Turcke of Moore Smith Buxton & Turcke, Chartered, Boise, Idaho, filed an amici curiae brief for Blueribbon Coalition, Ida ho State Snowmobile Association, and American Council of Snowmobile Ass ociations.1 Wyoming named as defendants the United States Department of

Agriculture (“USDA”); the United States Forest Serv ice; Ann M. Veneman, Secretary of Agriculture; and Dale N. Bosworth, Chi ef Forester of the USDA (continued...) -4- Alison Roberts & William Perry Pendley, Mountain St ates Legal Foundation, filed an amicus curiae brief for Mountain States Le gal Foundation. Constance E. Brooks and Michael Marinovich of C.E. Brooks & Associates P.C., Denver, Colorado, filed an amici curiae brief for Wyoming Association of Conservation Districts, Wyoming Farm Bureau Federat ion, Wyoming Stock Growers Association, Petroleum Association of Wyomi ng, Billings County, North Dakota, and Rocky Mountain Region-People for the U. S.A. Michael S. Johnson, Jaysen R. Oldroyd, Assistant Attorneys General, and Mark L. Shurtleff, Utah Attorney General, Salt Lake City, U tah, filed an amicus brief for the State of Utah.

Before HENRY , MURPHY , and McCONNELL , Circuit Judges.

_________________________ MURPHY , Circuit Judge.

I. INTRODUCTION In January 2001 the United States Forest Service is sued a rule, commonly known as the “Roadless Rule,” that generally prohib ited road construction in inventoried roadless areas on National Forest Syste m lands. Roadless Area Conservation, 36 C.F.R. §§ 294.10–294.14 (2001). T he State of Wyoming filed a complaint in the United States District Court for t he District of Wyoming challenging the Roadless Rule. 1 A number of environmental organizations1 (...continued)

Forest Service [hereinafter and collectively, the “ federal defendants” or the “USDA”].

2 Defendant-intervenors are the Wyoming Outdoor Counc il, Wilderness Society, Sierra Club, Biodiversity Associates, Paci fic Rivers Council, Natural Resources Defense Council, National Audubon Society , and Defenders of Wildlife [hereinafter and collectively, the “WOC gr oups” or the “WOC”]. -5- intervened on behalf of the federal defendants in d efense of the Rule. 2 After concluding that the Forest Service promulgated the Roadless Rule in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370f, and the Wilderness Act, 16 U.S.C. §§ 1131–1136, the dis trict court permanently enjoined enforcement of the Rule. Wyoming v. United States Dep’t of Agric. , 277 F. Supp. 2d 1197, 1239 (D. Wyo. 2003). Defendant-i ntervenors are appealing the district court’s order. During the pendency of thi s appeal, the Forest Service adopted a final rule that replaces the Roadless Rul e. We conclude that the new rule has mooted the issues in this case and therefo re dismiss the appeal and
vacate the district court’s judgment.
II. BACKGROUND In October 1999, at the direction of President Clin ton, the Forest Service initiated a public rulemaking process designed to p rotect the remaining roadless areas within the National Forest System. See Notice of Intent to Prepare an Environmental Impact Statement, 64 Fed. Reg. 56,306 (Oct. 19, 1999). The proposed rule and Draft Environmental Impact Statem ent (“DEIS”) were3 Inventoried roadless areas are defined as “[u]ndeve loped areas typically

exceeding 5,000 acres that met the minimum criteriafor wilderness conservation under the Wilderness Act and that were inventoried during the Forest Service’s Roadless Area Review and Evaluation (RARE II) proce ss, subsequent assessments, or forest planing.” U.S. Forest Serv. , U.S. Dep’t of Agric., Forest Service Roadless Area Conservation: Final Environme ntal Impact Statement G-5 (2000). -6- published in early May 2000. See Notice of Proposed Rulemaking, 65 Fed. Reg. 30,276 (May 10, 2000). Public comments were receiv ed until July 17, 2000, and thereafter the Final Environmental Impact Statement(“FEIS”) was published in November 2000. In January 2001 the Forest Service announced the adoption of the Roadless Rule, which prohibited road constructi on, reconstruction, and timber harvest in inventoried roadless areas located on National Forest System lands unless an exception applied. 36 C.F.R. §§ 294.12(a )–(b) (2001). 3 The Rule affected approximately 58.5 million acres (or thirty-one percent) of the National Forest System lands, including roughly 3.25 millionacres (or thirty-five percent) of the National Forest lands in Wyoming. Almost immediately, the Roadless Rule was embroiledin litigation. See,
e.g. , Kootenai Tribe v. Veneman , 313 F.3d 1094, 1126 (9th Cir. 2002) (reversing preliminary injunction that prohibited implementati on of the Roadless Rule). On May 18, 2001, the State of Wyoming filed the presen t suit seeking declaratory and injunctive relief. In its complaint, Wyoming alleg ed, inter alia , that the Roadless Rule violated NEPA, the Wilderness Act, the Nationa l Forest Management Act,-7-

16 U.S.C. §§ 1600–1614, and the Multiple-Use Sustai ned-Yield Act, 16 U.S.C. §§ 528–531. On July 14, 2003, the district court h eld that the Forest Service promulgated the Roadless Rule in violation of NEPA and the Wilderness Act. Wyoming , 277 F. Supp. 2d at 1239. The court then set asid e the Roadless Rule pursuant to the Administrative Procedure Act, 5 U.S .C. § 706(2)(C), and issued a permanent injunction, national in scope, prohibitin g the federal defendants from enforcing the Roadless Rule. Id. at 1237-39. Although the federal defendants announced that theywould not appeal the district court’s order, the WOC groups filed a time ly notice of appeal. While the appeal was pending, the Forest Service announced a proposal to replace the Roadless Rule. Notice of Proposed Rulemaking, 69 F ed. Reg. 42,636 (July 16, 2004). At the same time, the Forest Service reinst ated an interim directive to provide guidance for the protection and management of the roadless areas until the Roadless Rule could be replaced. Notice of Iss uance of Agency Interim Directive, 69 Fed. Reg. 42,648 (July 16, 2004). Oral argument was held on May 4, 2005, and the nextday the Forest Service announced the adoption of a final rule repl acing the Roadless Rule. The new rule establishes a process whereby state govern ors may petition the Secretary of Agriculture to promulgate regulations establishi ng management requirements for any or all of the National Forest System invent oried roadless areas within a4 The United States filed an amicus brief arguing that the replacement rule

renders the appeal moot. The government takes no p osition on the issue of vacatur.

5 The question of standing need not be decided in ord er to analyze mootness and vacatur. See Arizonans for Official English v. Arizona , 520 U.S. 43, 66-67, 71-73 (1997); U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship , 513 U.S. 18, 21-22 (1994). -8- state. State Petitions for Inventoried Roadless Ar ea Management, 70 Fed. Reg. 25,654 (May 13, 2005) (to be codified at 36 C.F.R. pt. 294). This court requested supplemental briefing on (1) whether adoption of th e final rule moots this appeal and (2) if it does, whether the district court’s ju dgment should be vacated. 4 Because issuance of the new rule moots this case, t he appeal is dismissed for lack of jurisdiction and the district court’s judgment i s vacated.
III. DISCUSSION 5
A. Mootness Under Article III of the Constitution, the power of the federal courts extends only to “actual, ongoing cases or controver sies.” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990). A case will be rendere d moot if “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M. , 529 U.S. 277, 287 (2000) (quotation omitted). “The crucial question is whether grantin g a present determination of the issues offered will have some effect in the real wo rld.” Citizens for Responsible-9-

Gov’t State Political Action Comm. v. Davidson , 236 F.3d 1174, 1182 (10th Cir. 2000) (quotation and alteration omitted). By eliminating the issues upon which this case is b ased, adoption of the new rule has rendered the appeal moot. See Jones v. Temmer , 57 F.3d 921, 922 (10th Cir. 1995). The portions of the Roadless Rul e that were substantively challenged by Wyoming no longer exist. See 70 Fed. Reg. 25,654 (containing no prohibition on road construction, reconstruction, o r timber harvest); Camfield v. City of Oklahoma City , 248 F.3d 1214, 1223 (10th Cir. 2001) (“[A] statut ory amendment moots a case to the extent that it remove s challenged features of the prior law.” (quotation omitted)). Moreover, the al leged procedural deficiencies of the Roadless Rule are now irrelevant because the re placement rule was promulgated in a new and separate rulemaking proces s. An exception to mootness exists when (1) the durati on of the challenged conduct is too short to be fully litigated prior to its expiration, and (2) there is a reasonable expectation that the complaining party w ill be subjected to the same conduct again. Lewis , 494 U.S. at 481. Neither of these conditions are satisfied in the present case. If the Roadless Rule were to reappear in the future, there would be ample opportunity to challenge the rule be fore it ceased to exist. In any event, the likelihood of this occurring is much too speculative to conclude that there is a reasonable expectation that Wyoming woul d again be subject to the-10-

challenged rule. See Murphy v. Hunt , 455 U.S. 478, 482-83 (1982) (recognizing that the possibility of recurrence must be more tha n theoretical); cf. Camfield, 248 F.3d at 1223-24 (concluding that, without more, the possibility that a legislature may reenact the challenged statute does not preclud e a mootness determination). The WOC groups suggest that the Forest Service has strategically manipulated the courts and should not benefit from the preservation of the district court’s judgment by a declaration of mootness. In City of Erie , the Supreme Court noted that the interest in “preventing litiga nts from attempting to manipulate the Court’s jurisdiction to insulate a f avorable decision from review [] counsels against a finding of mootness.” 529 U.S. at 288. The concern is that a party’s change in position may be temporary and thu s abandoned once the litigation ends. See id. Even under the WOC’s characterization of events, however, it appears that the replacement of the Roa dless Rule was not triggered by the district court’s judgment, but merely reflec ts the government’s discontent with the rule itself. Any change to the rule would necessarily have an impact on this case and therefore should not automatically ra ise the specter of manipulation. Additionally, because it is appropriate to vacate t he judgment of the district court,

see discussion infraPart III.B, this argument loses much of its force. See City News & Novelty, Inc. v. City of Waukesha , 531 U.S. 278, 283-84 (2001) (explaining that the possibility of manipulation in City of Erie was important-11-

because a mootness determination would leave the st ate court judgment intact); Seneca-Cayuga Tribe v. Nat’l Indian Gaming Comm’n , 327 F.3d 1019, 1029 (10th Cir. 2003). For this court to render a decision on the validityof the now nonexistent Roadless Rule “would constitute a textbook example of advising what the law would be upon a hypothetical state of facts rather than upon an actual case or controversy as required by Article III of the Const itution.” Camfield, 248 F.3d at 1223 (quotation omitted). This appeal is therefore constitutionally moot and must be dismissed for want of jurisdiction.
B. Vacatur When a case becomes moot pending appeal, the genera l practice is to vacate the judgment below and remand with direction s to dismiss. McClendon v. City of Albuquerque , 100 F.3d 863, 868 (10th Cir. 1996). This is beca use “[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship , 513 U.S. 18, 25 (1994) (footnote omitted). Consequently, it is fre quently appropriate for an appellate court to vacate the judgment below when m ootness results from happenstance or the actions of the prevailing party

. Arizonans for Official English v. Arizona , 520 U.S. 43, 71-72 (1997). Vacatur is generally not6 In Nat’l Black Police Ass’n v. District of Columbia , the D.C. Circuit

suggested that it may have reached a different resu lt if the case had been rendered moot by the enactment or repeal of an administrativ e regulation. 108 F.3d 346, 353 (D.C. Cir. 1997). Vacatur, however, is determi ned by the particular circumstances of each case. McClendon v. City of Albuquerque , 100 F.3d 863, 868 (10th Cir. 1996). The circumstances of the rul e change in the instant case do not suggest that the Forest Service was motivated b y a desire to avoid or undermine the district court’s ruling. Any unfairn ess that may generally result (continued...) -12- appropriate when mootness is a result of a voluntary act of a nonprevailing party. See U.S. Bancorp Mortgage Co. , 513 U.S. at 24-25. Vacatur is an equitable remedy and the facts of the present situation favor vacating the judgment of the district court. See Tandy v. City of Wichita , 380 F.3d 1277, 1291 (10th Cir. 2004). Although this ca se was mooted by the Forest Service, the nonprevailing party, the agency is not“the party seeking relief from the judgment below.” U.S. Bancorp Mortgage Co. , 513 U.S. at 24. This is also not a case in which a litigant is attempting to man ipulate the courts to obtain the relief it was not able to win in the judicial syste m. Cf. Nat’l Black Police Ass’n v. District of Columbia , 108 F.3d 346, 352 (D.C. Cir. 1997) (observing that “[t]he mere fact that a legislature has enacted legislatio n that moots an appeal, without more, provides no grounds for assuming that the leg islature was motivated by such a manipulative purpose” because “[t]he legislature may act out of reasons totally independent of the pending lawsuit, or beca use the lawsuit has convinced it that the existing law is flawed”). 6 Moreover, because the party seeking6 (...continued)

from vacating a lower court’s judgment when the los ing party moots a case is not present in this particular situation. By vacating the judgment of the district court, the rights of the defendant-intervenors, the nonpre vailing parties seeking appellate relief, are preserved. See United States v. Munsingwear, Inc. , 340 U.S. 36, 39-40 (1950).

7 The district court also issued two prior rulings re lated to Wyoming’s claim under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2, §§ 1–15. See Wyoming v. United States Dep’t of Agric. , 239 F. Supp. 2d 1219 (D. Wyo. 2002) (ruling on discovery issues); Wyoming v. United States Dep’t of Agric. , 201 F. Supp. 2d 1151 (D. Wyo. 2002) (denying motion forjudgment on the pleadings). Although the possibility that these ru lings will have any preclusive effect in future litigation is slight, because the entire case is moot and the WOC has specifically requested vacatur, this court deem s it appropriate to grant WOC’s request to vacate these rulings of the district cou rt. See Affiliated Ute Citizens v. Ute Indian Tribe of the Uintah and Ouray Reservatio n , 22 F.3d 254, 256 (10th Cir. 1994). -13- appellate relief is not the party responsible for m ooting the case, the orderly operation of the appellate system is not being frus trated. See U.S. Bancorp Mortgage Co. , 513 U.S. at 26-27. Thus, this situation is more akin to one in which a controversy is mooted through “circumstance s unattributable to any of the parties.” Id. at 23 (quotation omitted). Accordingly, it is app ropriate to vacate the district court’s order striking down the Roadless Rule. 7
IV. CONCLUSION For the reasons set out above, we DISMISS this appeal as moot, VACATE the judgment and related interlocutory rulings of t he district court, see supranote 7, and REMAND the mooted claims to the district court for dismis sal without prejudice. In light of our disposition, all pendin g motions are DENIED as moot.