American Forest Resource Council v. Martha Williams , Principal Deputy Director of the U.s. Fish

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2023 Decided March 5, 2024
No. 22-5216
AMERICAN FOREST R ESOURCE C OUNCIL, ET AL.,
APPELLANTS
v.
M ARTHA WILLIAMS , P RINCIPAL DEPUTY DIRECTOR OF THE
U.S. FISH AND W ILDLIFE S ERVICE AND DEBRA A. HAALAND ,
S ECRETARY 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, 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.

-- 1 of 9 --

2
Before: S RINIVASAN, Chief Judge, WALKER , Circuit
Judge, and G INSBURG, 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 en-
dangered 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 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 affirm the judg-
ment of the district court.
II. Background
In 1992 the Fish and Wildlife Service, invoking 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 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,

-- 2 of 9 --

3
77 Fed. Reg. 71,876 (Dec. 4, 2012). In August 2020, the
Service proposed a rule that would have “excluded,” 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 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

-- 3 of 9 --

4
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 an-
nounced 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 plain-
tiffs 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 mo-
tion on October 13. The plaintiffs did not appeal the denial.

-- 4 of 9 --

5

-- 5 of 9 --

6
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 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 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 pre-
sented 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.

-- 6 of 9 --

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
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) (hold-
ing 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 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)
(holding a controversy over 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,” wherefore the peti-
tioner’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 con-
troversy. Cf. Arizona v. EPA, 77 F.4th 1126, 1127–28 (D.C.
Cir. 2023). Put simply, the Council has not shown how inval-
idating the expired Delay Rules would provide it or its fellow
plaintiffs with any “effectual relief.” The Council’s challenges

-- 7 of 9 --

8
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 ap-
plies 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 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 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-

-- 8 of 9 --

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,
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.

-- 9 of 9 --