UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICKY A. COX; SCOTT A.

TRACHTENBERG; FOREST EDGE FARMS,

INCORPORATED; CRAVEN COUNTY

LIVESTOCK ASSOCIATION; WADE S.

DUNBAR, III,

Plaintiffs-Appellants,

and

THOMAS L. MCCOY,

Plaintiff,

v.

DONALD L. PHILLIPS, individually and in

his official capacity as Chairman and

member of the Craven County Board

of Commissioners; CHARLES F. TYSON,

No. 97-2207

individually and in his official capacity

as Vice-Chairman and member of the

Craven County Board of

Commissioners; LEE K. ALLEN,

Individally and in his official capacity

as a member of the Craven County

Board of Commissioners; GARY BLEAU,

Individually and in his official capacity

as a member of the Craven County

Board of Commissioners; JOHNNIE

SAMPSON, JR., Individually and in his

official capacity as a member of the

Craven County Board of

Commissioners; ALBERT H. TOON, In

his official capacity as a member of
the Craven County Board of

Commissioners; EARL WRIGHT,

Individually and in his official capacity

as a member of the Craven County

Board of Commissioners; CRAVEN

COUNTY, NORTH CAROLINA,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Malcolm J. Howard, District Judge.

(CA-97-57-4-H)

Argued: April 7, 1998

Decided: May 5, 1998

Before WILKINSON, Chief Judge, and HAMILTON and

MICHAEL, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Isaac Clark Wright, Jr., WARD & SMITH, P.A., New

Bern, North Carolina, for Appellants. Trawick Hamilton Stubbs, Jr.,

STUBBS & PERDUE, P.A., New Bern, North Carolina, for Appellees. ON BRIEF: Robert E. Futrell, Jr., WARD & SMITH, P.A.,

New Bern, North Carolina, for Appellants. David J. Haidt, STUBBS

& PERDUE, P.A., New Bern, North Carolina, for Appellees.

_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Craven County enacted a temporary moratorium on certain intensive livestock operations. The district court dismissed plaintiffs' complaint challenging the moratorium and seeking declaratory and

injunctive relief. During the course of this appeal, the county's moratorium expired. This case is therefore moot. Accordingly, we vacate

the judgment of the district court and remand the case with directions

that it be dismissed.

I.

On February 25, 1997, the Craven County Board of Commissioners adopted an ordinance placing a moratorium on most new intensive

livestock operations and the expansion of existing operations in the

county. Craven County, N.C., Ordinance Providing For A Moratorium On Intensive Livestock Operations in Craven County, North

Carolina (Feb. 25, 1997) ("Ordinance"). The ordinance defined intensive livestock operations to include any enclosure, pen, feedlot, building or group of buildings intended for the confined feeding, breeding,

raising or hold of animals where animal waste may accumulate or

where vegetative cover cannot be maintained due to the concentration

of animals. Ordinance ¶1(a). According to the ordinance's preamble,

the Board was concerned about the environmental and health risks

associated with these operations such as water contamination and disease transmission. The Board enacted the moratorium in order to

study the growth of intensive livestock operations and to determine

whether to regulate them. The moratorium lasted through February

16, 1998.

At the time the moratorium took effect, plaintiff Thomas L. McCoy

was upgrading and expanding his swine farm in Craven County.

Plaintiffs Ricky A. Cox, Wade S. Dunbar, III, and Scott A. Trachten-

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berg had undertaken extensive preparations for a large swine farm in

Craven County and had formed Forest Edge Farms, Incorporated to

own and operate it. After the Board declined to exempt their activities

from the moratorium, these parties, as well as the Craven County

Livestock Association, filed suit against the board members and the

county. Their complaint alleged violations of the United States Constitution and North Carolina law. In their prayer for relief, plaintiffs

requested only a declaratory judgment that the moratorium was

invalid, an injunction prohibiting its enforcement, and other relief as

the court should deem just and proper. Plaintiffs did not request

money damages. Subsequently, McCoy settled his claims with the

defendants. Following a hearing, the district court found no violation

of federal law and dismissed the state law claims without prejudice.

This appeal followed.

II.

Initially, we must determine whether we have jurisdiction over this

appeal. Plaintiffs seek only a declaration that Craven County's moratorium is invalid and an injunction against its enforcement. That moratorium, however, ended on February 16, 1998. Its expiration

therefore renders this case moot, and we lack jurisdiction to consider

the merits of plaintiffs' claims.

Article III of the Constitution limits the judicial power to "actual,

ongoing cases or controversies." Lewis v. Continental Bank Corp.,

494 U.S. 472, 477 (1990) (citations omitted); see U.S. Const. art. III,

§ 2. Federal courts cannot decide questions not affecting the rights of

litigants in the case before them; a decision under such circumstances

would be tantamount to rendering an advisory opinion. Preiser v.

Newkirk, 422 U.S. 395, 401 (1975); North Carolina v. Rice, 404 U.S.

244, 246 (1971) (per curiam). To avoid this possibility, the "case-orcontroversy requirement subsists through all stages of federal judicial

proceedings, trial and appellate." Lewis, 494 U.S. at 477. Thus, an

actual controversy must exist "at all stages of review, not merely at

the time the complaint is filed." Arizonans for Official English v.

Arizona, 117 S. Ct. 1055, 1068 (1997) (internal quotation marks and

citations omitted); see Burke v. Barnes, 479 U.S. 361, 363 (1987).

When a law no longer remains in effect, cases challenging that law

and requesting only prospective equitable relief ordinarily become

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moot. See Burke, 479 U.S. at 363; Diffenderfer v. Central Baptist

Church, 404 U.S. 412, 414 (1972) (per curiam). For example, this circuit has found moot a challenge to a statute when the legislature

repealed it after the district court's entry of judgment. Maryland

Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1249-

50 (4th Cir. 1991). That case, involving only a request for declaratory

and injunctive relief, had "lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions

on abstract propositions of law." Id. at 1249 (internal quotation marks

and citation omitted); see Jordahl v. Democratic Party of Va., 122

F.3d 192, 198 (4th Cir. 1997), cert. denied, 118 S. Ct. 856 (1998). Of

course our concerns about the need for a continuing controversy in

cases of repealed laws apply equally to cases where laws have expired

by their own terms. See Burke, 479 U.S. at 363. Thus, we agree with

those circuits that have found "[a]s a general rule, if a challenged law

. . . expires, the case becomes moot." Native Village of Noatak v.

Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) (citations omitted);

accord Associated Gen. Contractors of Conn., Inc. v. City of New

Haven, 41 F.3d 62, 67 (2d Cir. 1994).

Plaintiffs' challenge to the Craven County moratorium has become

moot. The complaint, as plaintiffs' counsel acknowledged at oral

argument, does not request money damages. It requests only declaratory and injunctive relief. That relief, however, would have no legal

effect now that the moratorium has expired. Though a live controversy undoubtedly existed when plaintiffs filed their complaint, that

controversy has ended. Any ruling on the merits of plaintiffs' claims,

therefore, would amount to nothing more than an advisory opinion on

an expired law.

This case does not fall within an exception to the mootness doctrine. This is not a case capable of repetition yet evading review. See

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911). In the event

the county adopts another ordinance, ample opportunity exists for

judicial review. See National Black Police Ass'n v. District of

Columbia, 108 F.3d 346, 350-51 (D.C. Cir. 1997); Associated General Contractors, 41 F.3d at 66 n.7; Native Village of Noatak, 38 F.3d

at 1509-10. Nor does the county's voluntary decision to set a time

limit on the moratorium require us to reach the merits of this case. See

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). The

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Board of Commissioners set the moratorium's expiration date before

this lawsuit had been filed; thus, it cannot be said that the Board acted

in an attempt to avoid an adverse judgment. See, e.g., National Black

Police Ass'n, 108 F.3d at 349-50; Associated General Contractors, 41

F.3d at 66.

III.

When a case becomes moot on appeal, the ordinary course is to

vacate the judgment below and remand the case for dismissal.

Arizonans for Official English, 117 S. Ct. at 1071; United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950); Suarez Corp. Indus. v.

McGraw, 125 F.3d 222, 228 (4th Cir. 1997). We see no need to depart

from this "established practice." Arizonans for Official English, 117

S. Ct. at 1071 (quoting Munsingwear, 340 U.S. at 39). We therefore

vacate the judgment of the district court and remand the case with

directions to dismiss the complaint.

VACATED AND REMANDED

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