Bear Gulch Solar, LLC; v. Montana Public Service Commission;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEAR GULCH SOLAR, LLC; et al.,
Plaintiffs-Appellants,
v.
MONTANA PUBLIC SERVICE
COMMISSION; et al.,
Defendants-Appellees.
No. 18-36061
D.C. No. 6:18-cv-00006-CCL
MEMORANDUM*
BEAR GULCH SOLAR, LLC; et al.,
Plaintiffs-Appellees,
v.
MONTANA PUBLIC SERVICE
COMMISSION; et al.,
Defendants-Appellants.
No. 18-36095
D.C. No. 6:18-cv-00006-CCL
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
FILED
JUN 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Argued and Submitted May 17, 2019
Portland, Oregon
Before: N.R. SMITH and WATFORD, Circuit Judges, and SELNA,** District
Judge.
Plaintiffs1 and the Montana Public Service Commission and its
Commissioners (MPSC) both appeal the district court’s decision granting in part
and denying in part their cross-motions for summary judgment. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.2
1. The district court erred in concluding it could reach the merits of
Plaintiffs’ request for declaratory relief.
“A statutory change . . . is usually enough to render a case moot, even if the
legislature possesses the power to reenact the statute after the lawsuit is
dismissed.” Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.
1994). That is especially true when the applicable law is amended before a court
** The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
1Plaintiffs are Bear Gulch Solar, LLC; Canyon Creek Solar, LLC; Couch
Solar, LLC; Fox Farm Solar, LLC; Glass Solar, LLC; Malt Solar, LLC; Martin
Solar, LLC; Middle Solar, LLC; River Solar, LLC; Sage Creek Solar, LLC; Sypes
Canyon Solar, LLC; Valley View Solar, LLC; and Ulm Solar, LLC; and their
parent company, Cypress Creek Renewables Development, LLC.
2We grant the parties’ motions to take judicial notice. Dkt. Nos. 43, 52.
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has ruled on the original law. See Smith v. Univ. of Wash., 233 F.3d 1188, 1193–95
(9th Cir. 2000).
Here, prior to any decision from the district court, the MPSC enacted a
regulation, Montana Administrative Rule 38.5.1909, that removed the allegedly
unlawful portion of the MPSC’s test for establishing a legally enforceable
obligation (LEO). Significantly, Plaintiffs do not assert that Rule 38.5.1909 is
unlawful. Thus, Plaintiffs’ request for declaratory judgment regarding the MPSC’s
general LEO test is moot.
Although courts may decide a mooted issue if it is “capable of repetition but
evading review,” that rule “applies only in exceptional situations, and generally
only where the named plaintiff can make a reasonable showing that he will again
be subjected to the alleged illegality.” City of Los Angeles v. Lyons, 461 U.S. 95,
109 (1983) (citation omitted). Plaintiffs have failed to make such a showing. There
is no evidence in the record that the MPSC intends to reimplement the allegedly
improper LEO test. Plaintiffs have argued only that MPSC may return to that
standard, based on MPSC’s allegedly improper conduct towards the Plaintiffs and
its defense of the prior LEO test in these and related proceedings. “Such a
speculative possibility does not constitute a ‘reasonable [showing].’” W. Coast
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Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 705 (9th
Cir. 2011).
2. The district court did not err in declining to provide Plaintiffs their
requested injunctive relief, as that relief is barred by the Eleventh Amendment.
The Eleventh Amendment declares that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. This provision
bars any lawsuit against the MPSC itself, and permits suit “against the individual
commissioners in their official capacities” only if “the complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645
(2002) (citation, quotation marks, and alteration omitted).
Here, Plaintiffs have neither alleged an ongoing violation of federal law, nor
sought relief properly characterized as prospective. The only non-mooted potential
violation of federal law at issue is that, as of June 16, 2016—the date the more
favorable pay rate for energy suppliers who had established a LEO (Prior Tariff)
was suspended—the MPSC was utilizing a purportedly unlawful test for
determining whether Plaintiffs established a LEO. As a result of that alleged
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violation, Plaintiffs have been unable to contract to supply energy to Montana
electric utility NorthWestern at the Prior Tariff rate. Indeed, as declared by
Plaintiffs “the only reason [Plaintiffs] are unable to sell power prospectively at the
[Prior Tariff] rate is Defendants’ unlawful application of the [prior LEO] standard
to the question of their eligibility for that Tariff.”
That is not an ongoing violation, as the MPSC simply made a one-time
determination that Plaintiffs—and those similarly situated—had not established a
LEO. Plaintiffs’ ongoing inability to contract with NorthWestern at their preferred
rate is a “mere continuing impact from” that alleged past violation and is not a
continuing violation of its own. See Williams v. Owens-Illinois, Inc., 665 F.2d 918,
924 (9th Cir. 1982) (quoting Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760
(9th Cir. 1980)).
Likewise, the relief requested by Plaintiffs is retroactive in nature. In their
appellate brief, Plaintiffs request an injunction to prevent MPSC from “utilizing
the unlawful [prior LEO] test to preclude [Plaintiffs] from contracting
prospectively with NorthWestern under the [Prior Tariff]” and from “denying any
[qualifying facility] the right to contract with NorthWestern prospectively under
the [Prior Tariff] where the [qualifying facility] tendered a fully-negotiated,
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executed [power purchase agreement] to NorthWestern on or before June 16,
2016.”3
Although Plaintiffs ask that the Prior Tariff rate apply only prospectively,
they are entitled to that rate only if we direct the MPSC commissioners to declare
that Plaintiffs had established a LEO prior to June 16, 2016. See 18 C.F.R.
§ 292.304(d)(2)(i), (ii) (providing qualifying facilities with the option to sell their
energy output at the applicable tariff rate existing either “at the time of delivery” or
“at the time the obligation is incurred.” (emphasis added)). As noted by the district
court, this relief would require the state to “turn back the clock and re-write [its
past decision] in such a way that each [qualifying facility] could benefit from the
[Prior Tariff] rate,” thus “imposing a burden on the [MPSC] to determine which
3We assume without deciding that Plaintiffs properly raised this requested
relief below. However, we note that Plaintiffs requested two different forms of
injunctive relief during the course of the district court proceedings, neither of
which are the same as the relief requested before us. In their complaint, Plaintiffs
requested “[p]ermanent injunctive relief directing [MPSC to] . . . adopt[] a standard
for establishment of a [LEO] that is [lawful], and directing [MPSC] to allow any
[qualifying facility] that satisfied that standard on or before June 16, 2016, . . . to
contract with and sell their output to NorthWestern under the [Prior Tariff’s] . . .
rates of approximately $66/MWhr.” On the other hand, in their motion for
summary judgment, Plaintiffs asked the court to “declare that any [qualifying
facility] that tendered a fully-negotiated . . . [power purchase agreement] to
NorthWestern on or before June 16, 2016, established a LEO . . . and is entitled to
contract with the utility under the [Prior Tariff’s] terms.” In their appellate brief,
Plaintiffs expressly disclaimed the relief requested in the Complaint, and they do
not reassert the precise relief requested in their summary judgment motion.
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projects established [a] LEO on or before June 16, 2016 under [a] new standard
and . . . ordering retroactive relief.” Such retroactive relief is barred by the
Eleventh Amendment. See Verizon Md., Inc., 535 U.S. at 645.
The parties shall bear their own costs for this appeal.
AFFIRMED in part and REVERSED in part.
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