# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2023 Decided March 5, 2024

No. 22

- 5216

A MERICAN F OREST R ESOURCE C OUNCIL , ET AL ., A PPELLANTS

v.

M ARTHA W ILLIAMS , P RINCIPAL D EPUTY D IRECTOR OF THE U.S. F ISH AND W ILDLIFE S ERVICE AND D EBRA A. H AALAND , S ECRETARY OF I NTERIOR , A PPELLEES

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, ar

gued the cause for appellees. With her on the brief were Todd Kim , Assistant Attorney General, and Rachel Heron and Brian C. Toth , Attorneys.2

Before: S RINIVASAN , Chief Judge

, W ALKER , Circuit Judge , and G INSBURG , Senior Circuit Judge

. Opinion for the Court filed by Senior Circuit Judge G INSBURG

.

G INSBURG , 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 en

dangered species of spotted owl. After a change in presidentia l 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 delay ing the ef

fective 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 af firm the judg

ment of the district court.

II. Background

In 1992 the Fish and Wildlife Service

, invok ing its author

ity 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 north ern 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 l ater 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,3
77 Fed. Reg. 71,876 (Dec. 4, 2012). In August 2020, the Service proposed a rule that would have “ ex cluded, ” i.e. , re

moved, about 200,000 acres from the critical habitat designa

tion. 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 A dministration 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 A dministration took office, the White House Chief of Staff directed all executive a gency 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 de laying 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. T he Service made the First Delay Rule effective immediately, pursuant to Section 553(b)(B) o f the Admin istrative Procedure Act (APA)

, which authorizes an agency for “ good cause ” to dispense with the no tice

- and

- comment procedur e ordinarily required for the issu ance 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 . The y claimed the grounds on which the Service invoked Section 553(b)(B)

— threats of litigation over the owl ’ s4

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 a nother 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 t he Second Delay Rule , which was also issued without having gone through the notice and comment procedure, t he Service an

nounced that it intended to revise or withdraw the January 2021 rule

. I d. 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 No rthern Spotted Owl, 86 Fed. Reg. 38,246. Soon thereafter, t he plain

tiffs filed a mo tion to supplement their complaint with claims alleging the re lease 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 mo

tion on October 13

. T he plainti ffs did not appeal the denial.56

On November 10, 2021 the Service issued a final rule with draw ing 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 th e Council’s lawsuit on the ground that the case had become moot. The district court agreed and dis missed 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 alterna

tive, 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 firs t 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 pre

sented are no longer live or the parties lack a legally cogniz able interest in the outcome. ’” Porzecanski v. Azar , 943 F.3d 472, 479 (D.C. Cir. 2019) (quoting Conservation Force, Inc. v.7

Jewell

, 733 F.3d 1200, 1204 (D.C. Cir. 2013)). “ For example, a case is moot if intervening events make it impossible ‘ to grant

an y 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. Com m ’ n , 711 F.2d 370, 377

– 79 (D.C. Cir. 1983) (hold

ing a controversy over the validity of a n 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 up on the validity of the delay rule)

. Nor does the Council ’ s challenge relate to a ny substantive regula

tion first promulgated in one of the Delay Rules and subse

quently 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) (hold ing a controversy ove r the validity of an expired interim rule was not moot because the final rule “ reaffirm[ed] the find

ings discussed in the interim rule and basically adopt[ed] the interim rule ’ s [substantive] regulation, ” w herefore the peti

tioner ’ s challenge was “ equally applicable to the final rule and the in terim rule ” )

. Nor did either Delay Rule change a future compli ance date that may have provided a basis for a live con

troversy. Cf. Arizona v. EPA , 77 F.4th 1126, 1127

– 28 (D.C. Cir. 2023). Put simply , the Council has not shown how in val

idating the expired Delay Rules would provide it or its fellow plain tiffs with any “ effectual relief

. ” T he Council ’ s challenges8

to the validity of the First and Second Delay Rules are therefore
moot.

B. Capable of repetition yet evading review

Plaintiffs alternative ly argue the Council ’ s claims against the Service come within the exception to mootness for matters

“ capable of repetition yet evading review

. ” That exception ap

plies if two conditions are met: “ (1) t he challenged action is too short to be fully liti gated prior to cessation or expiration; and (2) there is a reason able expectation that the same complaining party would be sub jected 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, w e 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 typi

cal 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 plausi

bly suggested they will be subjected to another Service delay rule in the future. The November 2021 rule withdrew and re

placed the January 2021 rule. There is, in other words, no longer any proposed critical

- habitat

- reduction rule for the Service to delay. Nor have t he plaintiffs pointed to any other proposed rule af fecting 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 th erefore conclude that the “ capable of repe

-9
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,

A ffirmed

.

* 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.