National Wildlife Refuge Association v. Rural Utilities Service

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 5, 2024
Decided November 6, 2024
Before
F RANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON , Circuit Judge
M ICHAEL B. BRENNAN , Circuit Judge
No. 24-1492
NATIONAL WILDLIFE R EFUGE A SSOCIATION , et al.,
Plaintiffs-Appellees,
v.
R URAL U TILITIES S ERVICE, et al.,
Defendants-Appellees.
v.
ITC M IDWEST LLC and DAIRYLAND POWER
C OOPERATIVE,
Intervening Defendants-Appellants.
Appeal from the United States
District Court for the Western
District of Wisconsin.
No. 3:24-cv-00139-wmc
William M. Conley,
Judge.
O R D E R
This appeal is successive to Driftless Area Land Conservancy v. Rural Utilities
Service, 74 F.4th 489 (7th Cir. 2023), which concerns the proposed construction of an
electric transmission line across a federal wildlife refuge. Our opinion held that the
district court erred in declaring improper the implementation of an administrative
order that had been withdrawn before the district court acted. Likewise, we held, it
erred in announcing that the agency lacks the power to approve a land exchange that

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might permit construction by changing the boundaries of the refuge. Such an exchange
had yet to be approved, and we held that judicial review must await the administrative
decision.
In February 2024 the agency approved a land exchange, which the district court
enjoined. An order issued on March 21, 2024, reads:
[D]efendants are PRELIMINARILY ENJOINED from closing on any land
exchange involving the Upper Mississippi River National Wildlife and
Fish Refuge before the court issues its decision on the pending motion for
preliminary injunction.
This order does not give any reasons and seems to be more in the nature of a
temporary restraining order than a preliminary injunction, though it bears the latter
label. The judge held a hearing the next day and on March 25 issued another
preliminary injunction, which reads:
IT IS ORDERED that the federal defendants and intervenor defendants are
PRELIMINARILY ENJOINED from taking any action to close the land
exchange agreement or begin construction on the stretch of the Cardinal-
Hickory Creek Transmission Line Project running through and across the
Upper Mississippi River National Wildlife and Fish Refuge until after this
court has an opportunity to review and consider the relevant
administrative record underlying the federal defendants’ February 2024
administrative decisions and issued a decision on whether to continue
plaintiffs' preliminary injunction further. Those defendants are further
directed to expediate the production of that record.
An accompanying opinion set out the judge’s view that nothing should change
until the agency’s decision had been thoroughly reviewed. The judge also relied to an
extent on his earlier declaration that a land exchange would be unlawful.
The court did not find that plaintiffs were likely to prevail on the merits.
Defendants appealed, and on May 2, 2024, we stayed the preliminary injunction,
observing in part:
The Supreme Court held in Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20 (2008), that “[a] plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the

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No. 24-1492 Page 3
public interest.” See also Nken v. Holder, 556 U.S. 418, 434 (2009). These
factors are not optional. The absence of a finding that the plaintiffs are
“likely to succeed on the merits” precludes the entry of a preliminary
injunction.
Both of the district court’s orders observed that the land exchange had
been blocked in 2022, but that decision was vacated as premature and
improvident. It cannot be relied on to show that the plaintiffs are likely to
succeed in this new suit. See Driftless, 74 F.4th at 496 (the district court’s
vacated decision “will not have any authoritative or precedential effect in
any future suit, once any of the federal agencies makes a new decision”).
Nor did the district court make any independent finding about the
plaintiffs’ probability of success.
We therefore stay the effectiveness of the preliminary injunction.
The district court remains free to consider whether a permanent injunction
is appropriate. But a permanent injunction, if any, must be based on a
conclusion that the agency’s action is legally forbidden and that other
equitable considerations, including those in 42 U.S.C. §4370m–6(b)(1) & (2)
(“the FAST Act”) have been satisfied.
After we issued this stay, the district court did not act on plaintiffs’ request for a
permanent injunction. The land exchange closed, and construction began. On
September 26, 2024, the transmission line was placed in service.
The orders of March 21 and March 25 are moot. Both orders enjoin the closing of
the land exchange, and the March 25 order also enjoins the start of construction. Neither
element of relief is achievable today. The exchange closed, and construction was not
only started but also finished. These orders no longer can serve any function. They are
accordingly vacated as moot, to avoid any possibility of collateral consequences.
See Department of Treasury v. Galioto, 477 U.S. 556 (1986); United States v. Munsingwear,
Inc., 340 U.S. 36 (1950).
Plaintiffs’ request for a permanent injunction remains pending in the district
court, which must determine whether the entire case is moot. We can imagine the
possibility of relief such as an order to tear down the transmission line and restore the
environment, or to swap additional (or different) land as part of an exchange, but at oral
argument plaintiff’s lawyer struggled to articulate any kind of relief that plaintiffs deem
both desirable and feasible. Counsel suggested that plaintiffs want a decision on the

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No. 24-1492 Page 4
merits even if no concrete relief is possible, expressing the view that this will help them
(or similar environmental litigants) in some future suit concerning a different project.
Counsel also stated that a favorable decision on the merits might help when negotiating
in this or some future litigation. This sounds like a proposal for an advisory opinion,
which is outside the federal courts’ remit. Once a controversy has become moot because
damages and prospective relief are impossible, the label “declaratory judgment” does
not avoid the constitutional problem.
We are therefore tempted to declare that the entire case is moot and order the
complaint dismissed for lack of a case or controversy. But perhaps plaintiffs’ counsel
was simply unprepared to address this issue during the oral argument. It would not be
appropriate to find mootness until all litigants have had a full opportunity to address
the question whether any concrete relief is possible, because a case “becomes moot only
when it is impossible for a court to grant any effectual relief whatever to the prevailing
party.” Knox v. Service Employees, 567 U.S. 298, 307 (2012).
The two preliminary injunctions are vacated, and the case is remanded for
proceedings consistent with this order.

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