Greater Yellowstone Coalition v. Tidwell (2009)

The Ninth Circuit disagreed, holding that “[t]he [Bureau]’s challenged ‘action’ stands in marked contrast to cases involving truly ‘affirmative’ actions.” Id.; see also Fund for Animals, Inc. v. Thomas, 127 F.3d 80 , 83 n. 3, 84 n. 6 (D.C.Cir.1997) (decision to refrain from regulating baiting was likely not an action, and therefore would probably not trigger compliance with NEPA or ESA requirements); cf. Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1123 (10th Cir.200…

See Cold Mountain, 375 F.3d at 894 ; Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1122-23 (10th Cir.2009).

But it is defendants’ burden to ”com[e] forward with the subsequent events" that allegedly have resulted in mootness, Greater Yellowstone Coalition v. Tidwell, 572 F.3d 1115, 1121 (10th Cir.2009) (quotation omitted), and defendants’ vague suggestions of changes to the QLLP fail to carry that burden.

This exception traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (quotation and citations omitted). “[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected …

Northern contends we lack jurisdiction because the appeal is moot. 1 “To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir.2009) (quotation omitted).

This is quite true, but in the same decision in which the Supreme Court decided this question, it also held that federal question jurisdiction under 28 U.S.C. § 1331 extends to APA claims unless Congress has specifically precluded judicial review of the particular agency action that is the subject of the APA claim. [1] See id. at 105 , 97 S.Ct. 980 ; Chrysler Corp. v. Brown, 441 U.S. 281 , 317 n. 47, 99 S.Ct. 1705 , 60 L.Ed.2d 208 (1979) ("Jurisdiction to review agency actio…

This is quite true, but in the same decision in which the Supreme Court decided this question, it also held that federal question jurisdiction under 28 U.S.C. § 1331 extends to APA claims unless Congress has specifically precluded judicial review of the particular agency action that is the subject of the APA claim. 1 See id. at 105 , 97 S.Ct. 980 ; Chrysler Corp. v. Brown, 441 U.S. 281 , 317 n. 47, 99 S.Ct. 1705 , 60 L.Ed.2d 208 (1979) (“Jurisdiction to review agency action …

App’x 546, 551 (10th Cir. 2019) (quoting Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011). 29 Id. (quoting Jordan, 654 F.3d at 1025 ). 30 Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (internal quotations omitted). defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is a properly certified class action suit.”31 Defendants’ nonmerits-related facts implicate the voluntary cession exception …

DISCUSSION “Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.”27 “Once a controversy ceases to exist, the action is moot and [the] court lacks jurisdiction to adjudicate the matter.”28 “The crucial question is whether granting a present determination of the issues offered will have some effect in the real world.”29 For claims seeking declaratory judgment, such as Plaintiffs’ claim…

This exception traces to the principle that a party should not be, able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” Greater Yellowstone Coal v. Tidwell, 572 F.3d 1115, 1121 (10th .

That the federal defendants continue to issue leases in a manner consistent with the federal coal management program introduced in 1979, does not constitute an “ongoing ‘major [fjederal action,’ ” Norton, 542 U.S. at 73 , 124 S.Ct. 2373 , necessitating a supplemental EIS, cf. Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1095 (9th Cir.2013) (“additional, independent actions ... did not trigger [statutory] supplementation of the .,. environmental analysis” where th…

See Cold Mountain v. Garber, 375 F.3d 884, 894 (9th Cir.2004) ("Because the permit has been approved and issued, the [agency’s] obligation under NEPA has been fulfilled."); Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1123 (10th Cir.2009) (No "ongoing major federal action" despite the fact that the Forest Service retained discretion to modify or amend permit.); Ctr. for Biological Diversity v. Salazar, 791 F.Supp.2d 687, 697 (D.Ariz.2011) (Requiring permittee to upda…

See also Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981) ("We therefore hold that NEPA does require the supplementation of an EIS when subsequent project changes can ... be classified as major Federal actions significantly affecting the quality of the human environment”) (citation and internal quotation marks omitted); Greater Yellowstone Coalition v. Tidwell, 572 F.3d 1115, 1123 (10th Cir.2009) (agency’s decision not to supplement was not arbitrary, ca…

“No agency could meet its NEPA obligations if *103 it had to prepare an environmental impact statement every time the agency had power to act but did not do so.” Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1246 (D.C.Cir.1980); accord Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1123 (10th Cir.2009).

Califano v. Sanders, 430 U.S. 99, 105, 107 , 97 S.Ct. 980 , 51 L.Ed.2d 192 *1243 (1977); 5 U.S.C. § 701 (a); see also Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1120 (10th Cir.2009).

At least three circuits have found that “NEPA cannot be used to make indirectly reviewable a discretionary decision not to take an enforcement action where the decision itself is not reviewable under the APA or the substantive statute. ‘No agency could meet its NEPA obligations if it had to prepare an environmental impact statement every time the agency had power to act but did not do so.’ ” Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv., 674 F.3d 97, 102…

See Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115 , 1123 n. 3 (10th Cir.2009); Chem.