United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2023 Decided March 5, 2024

No. 22-5216

AMERICAN FOREST RESOURCE COUNCIL, ET AL.,

APPELLANTS

v.

MARTHA WILLIAMS, PRINCIPAL DEPUTY DIRECTOR OF THE 

U.S. FISH AND WILDLIFE SERVICE AND DEBRA A. HAALAND,

SECRETARY OF INTERIOR,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-00601)

Tyler G. Welti argued the cause for appellants. With him 

on the briefs were Dominic M. Carollo and Susan Elizabeth 

Drummond.

Joan M. Pepin, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Todd 

Kim, Assistant Attorney General, and Rachel Heron and Brian 

C. Toth, Attorneys.
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Before: SRINIVASAN, Chief Judge, WALKER, Circuit 

Judge, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

GINSBURG, Senior Circuit Judge:

I. Introduction

On January 15, 2021 the U.S. Fish and Wildlife Service

issued a proposed rule greatly reducing the amount of land in 

the Pacific Northwest designated as critical habitat for an endangered species of spotted owl. After a change in presidential 

administrations, however, the Service reversed course and 

moved to withdraw the proposed rule before it took effect. In 

order to do so, the Service twice issued rules delaying the effective date of the proposed rule. The Council challenged the 

validity of both “delay rules,” but after the rules had expired 

the district court determined the plaintiffs’ claims had become

moot and dismissed their case. We agree and affirm the judgment of the district court.

II. Background

In 1992 the Fish and Wildlife Service, invoking its authority under the Endangered Species Act, 16 U.S.C. §§ 1531–

1544, designated approximately 6.8 million acres of land in the 

Pacific Northwest as “critical habitat” for the northern spotted 

owl (Strix occidentalis caurina). See Endangered and 

Threatened Wildlife and Plants; Determination of Critical 

Habitat for the Northern Spotted Owl, 57 Fed. Reg. 1796 

(Jan. 15, 1992). A later addition increased the total area of the 

critical habitat designation to approximately 9.5 million acres. 

See Endangered and Threatened Wildlife and Plants; Revised 

Designation of Critical Habitat for the Northern Spotted Owl, 
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77 Fed. Reg. 71,876 (Dec. 4, 2012). In August 2020, the 

Service proposed a rule that would have “excluded,” i.e., removed, about 200,000 acres from the critical habitat designation. See Endangered and Threatened Wildlife and Plants; 

Revised Designation of Critical Habitat for the Northern 

Spotted Owl, 85 Fed. Reg. 48,487 (Aug. 11, 2020). In January 

2021, shortly before the Trump Administration left office, the 

Service published a final rule that instead excluded nearly 

3.5 million acres from the critical habitat designation, effective 

March 16, 2021. See Endangered and Threatened Wildlife and 

Plants; Revised Designation of Critical Habitat for the 

Northern Spotted Owl, 86 Fed. Reg. 4820 (Jan. 15, 2021).

Soon after the Biden Administration took office, the White 

House Chief of Staff directed all executive agency heads to 

identify rules that had not yet come into effect and to consider 

postponing the effective dates of the rules by 60 days in order 

to review any “substantial questions of law, fact, or policy” the 

pending rules might raise. Memorandum for the Heads of 

Executive Departments and Agencies, 86 Fed. Reg. 7424, 7424

(Jan. 28, 2021). On February 26, 2021 the Service issued a rule 

delaying the effective date of the January 2021 rule from 

March 16 to April 30 (the First Delay Rule). See Endangered 

and Threatened Wildlife and Plants; Revised Designation of 

Critical Habitat for the Northern Spotted Owl; Delay of 

Effective Date, 86 Fed. Reg. 11,892. The Service made the 

First Delay Rule effective immediately, pursuant to 

Section 553(b)(B) of the Administrative Procedure Act (APA), 

which authorizes an agency for “good cause” to dispense with 

the notice-and-comment procedure ordinarily required for the 

issuance of a final rule. See id. at 11,893–94. Approximately 

one week later, Appellant American Forest Resource Council 

and its fellow plaintiffs sued the director of the Service. They

claimed the grounds on which the Service invoked 

Section 553(b)(B) — threats of litigation over the owl’s 
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critical-habitat designation and potential substantive problems 

with the January 2021 rule — did not constitute “good cause”

within the meaning of the statute.

On April 29, one day before the January 2021 rule would 

have taken effect, the Service issued another rule delaying the 

effective date to December 15, 2021 (the Second Delay Rule). 

See Endangered and Threatened Wildlife and Plants; Revised 

Designation of Critical Habitat for the Northern Spotted Owl; 

Delay of Effective Date, 86 Fed. Reg. 22,876. In the Second 

Delay Rule, which was also issued without having gone 

through the notice and comment procedure, the Service announced that it intended to revise or withdraw the January 2021 

rule. Id. at 22,877, 22,880–82.

On July 20, 2021 the Service proposed a new rule that 

would withdraw the January 2021 rule and instead exclude 

only 204,000 acres of land from the owl’s designated critical 

habitat. See Endangered and Threatened Wildlife and Plants; 

Revised Designation of Critical Habitat for the Northern 

Spotted Owl, 86 Fed. Reg. 38,246. Soon thereafter, the plaintiffs filed a motion to supplement their complaint with claims 

alleging the release of Second Delay Rule also violated the 

APA. On September 27, the plaintiffs moved for a preliminary 

injunction barring the Service from implementing either Delay 

Rule. The district court denied the preliminary injunction motion on October 13. The plaintiffs did not appeal the denial.
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On November 10, 2021 the Service issued a final rule 

withdrawing the January 2021 rule and removing only 204,294 

acres of land from the critical habitat designation. See 

Endangered and Threatened Wildlife and Plants; Revised 

Designation of Critical Habitat for the Northern Spotted Owl, 

86 Fed. Reg. 62,606. The final rule took effect on December 

10, 2021. The Council did not challenge the November 2021 

final rule. 

On February 25, 2022 the Service moved to dismiss the 

Council’s lawsuit on the ground that the case had become 

moot. The district court agreed and dismissed the case for lack 

of subject-matter jurisdiction.

III. Standard of Review

The Council appeals the district court’s dismissal of its

complaint, arguing its claims are not moot and, in the alternative, they come within both of the recognized exceptions to

mootness. Our review is de novo. See, e.g., Del Monte Fresh 

Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 

2009).

IV. Analysis

We first conclude that the Council’s lawsuit against the 

Service is indeed moot. We then consider the Council’s claim 

to the exception from mootness on the ground that the action 

they challenge is “capable of repetition yet evading review.”

A. Mootness

“In general, ‘a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable 

interest in the outcome.’” Porzecanski v. Azar, 943 F.3d 472, 

479 (D.C. Cir. 2019) (quoting Conservation Force, Inc. v. 
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Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013)). “For example, 

a case is moot if intervening events make it impossible ‘to grant 

any effectual relief.’” Id. (quoting Church of Scientology of 

Cal. v. United States, 506 U.S. 9, 12 (1992)). 

As the district court correctly determined, it would have 

been pointless to render a judgment on the validity of the First 

and Second Delay Rules. Both rules had by then expired and 

had no continuing effect. For example, neither one made any 

factual determination upon which the November 2021 rule was 

predicated. Cf. Union of Concerned Scientists v. Nuclear 

Regul. Comm’n, 711 F.2d 370, 377–79 (D.C. Cir. 1983) (holding a controversy over the validity of an expired delay rule was 

not moot because it had also made “a safety determination upon 

which the final rule was partially predicated”); cf. also Nat. 

Res. Def. Council v. Abraham, 355 F.3d 179, 187–88, 204–06 

(2d Cir. 2004) (hearing a challenge to an expired delay rule 

where, due to a certain statutory provision, the validity of the 

final rule depended upon the validity of the delay rule). Nor 

does the Council’s challenge relate to any substantive regulation first promulgated in one of the Delay Rules and subsequently adopted in the November 2021 rule. Cf. Am. Maritime 

Ass’n v. United States, 766 F.2d 545, 554 n.14 (D.C. Cir. 1985)

(holding a controversy over the validity of an expired interim 

rule was not moot because the final rule “reaffirm[ed] the findings discussed in the interim rule and basically adopt[ed] the 

interim rule’s [substantive] regulation,” wherefore the petitioner’s challenge was “equally applicable to the final rule and 

the interim rule”). Nor did either Delay Rule change a future 

compliance date that may have provided a basis for a live controversy. Cf. Arizona v. EPA, 77 F.4th 1126, 1127–28 (D.C. 

Cir. 2023). Put simply, the Council has not shown how invalidating the expired Delay Rules would provide it or its fellow 

plaintiffs with any “effectual relief.” The Council’s challenges 
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to the validity of the First and Second Delay Rules are therefore 

moot.

B. Capable of repetition yet evading review

Plaintiffs alternatively argue the Council’s claims against 

the Service come within the exception to mootness for matters

“capable of repetition yet evading review.” That exception applies if two conditions are met: “(1) the challenged action is too 

short to be fully litigated prior to cessation or expiration; and 

(2) there is a reasonable expectation that the same complaining 

party would be subjected to the same action again.” In re 

Sealed Case, 77 F.4th 815, 826 (D.C. Cir. 2023) (cleaned up).

As to the first condition, we presume that “agency actions 

of less than two years’ duration cannot be ‘fully litigated’ prior 

to cessation or expiration, so long as the short duration is typical of the challenged action.” Del Monte, 570 F.3d at 322 

(quoting Pub. Utils. Comm’n of the State of Cal. v. FERC, 236 

F.3d 708, 714 (D.C. Cir. 2001)). The plaintiffs, however, have 

neither alleged nor shown that Service delay rules such as those

at issue in this case typically expire within two years. 

As to the second condition, the plaintiffs have not plausibly suggested they will be subjected to another Service delay 

rule in the future. The November 2021 rule withdrew and replaced the January 2021 rule. There is, in other words, no 

longer any proposed critical-habitat-reduction rule for the 

Service to delay. Nor have the plaintiffs pointed to any other 

proposed rule affecting their interests the Service might delay 

via a rulemaking issued without notice-and-comment. There 

is, therefore, no indication that “the legal wrong complained of 

by the plaintiff is reasonably likely to recur.” Del Monte, 570 

F.3d at 324. We therefore conclude that the “capable of repe-
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tition yet evading review” exception does not apply to this 

case.*

 

V. Conclusion

For the reasons stated, the judgment of the district court is, 

therefore,

Affirmed.

* The plaintiffs also invoked the “voluntary cessation” exception to 

mootness, but that exception does not apply here. The Delay Rules 

expired by their terms. It was the mere passage of time that caused 

the cessation of the Rules, not any strategic act on the part of the 

Service.