                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            FEB 05 2015

                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

WILDERNESS WATCH and FRIENDS                    No. 13-35610
OF THE CLEARWATER,
                                                D.C. No. 9:12-cv-00102-DWM
              Plaintiffs - Appellants,

  v.                                            MEMORANDUM*

JULIE KING; et al.,

              Defendants - Appellees.


                 Appeal from the United States District Court
                         for the District of Montana
               Donald W. Molloy, Senior District Judge, Presiding

                      Argued and Submitted January 22, 2015
                                Billings, Montana

Before: THOMAS, Chief Judge, and HAWKINS and CHRISTEN, Circuit Judges.

       This appeal challenges the adverse grant of summary judgment on claims

brought by environmental advocacy organizations Wilderness Watch and Friends of

the Clearwater (collectively “Watch”) that the U.S. Forest Service (“USFS”) violated


         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the Wilderness Act, National Environmental Policy Act, and National Forest

Management Act when it authorized two helicopter flights to deliver replacement

parts to the Fred Burr High Lake dam located within the Selway-Bitterroot Wilderness

Area (“Wilderness Area”). We dismiss for lack of jurisdiction because the case is

moot, and the “capable of repetition yet evading review” exception does not apply.1

      Before exercising jurisdiction, a court must ensure that the case is not moot.

See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000), cert.

denied, 532 U.S. 905 (2001). Thus, “an actual controversy must be extant at all stages

of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S.

395, 401 (1975). “Where the activities sought to be enjoined have already occurred,

and the appellate courts cannot undo what has already been done, the action is moot.”

Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir. 1989)

(quoting Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978)).

Watch’s prayer for injunctive relief is moot because the challenged flight already

occurred, and we cannot undo what has already been done.

      A court may invoke jurisdiction over a claim for declaratory relief even if a case

is moot with respect to injunctive relief. Feldman v. Bomar, 518 F.3d 637, 642 (9th

Cir. 2008) (citing Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121–22 (1974)).


      1
          We also grant USFS’ unopposed motion to supplement the record.
                                           2
Super Tire reasoned that such a claim remains live if a challenged policy is fixed and

definite, not contingent upon executive discretion, and by its continuing presence

casts a substantial adverse effect on the interests of the parties. 416 U.S. at 122–24.

As Watch does not challenge a fixed and definite policy, but rather a single fact-

dependent authorization involving USFS discretion, the prayer for declaratory relief

is also moot.

      An otherwise moot action may still be subject to review under the “capable of

repetition, yet evading review” exception, which applies when both the duration of the

challenged action is too short to allow full litigation before it ceases, and there is a

reasonable expectation that the plaintiffs will be subjected to the same action again.

See Spencer v. Kemna, 523 U.S. 1, 17 (1998).

      Watch does not demonstrate a reasonable expectation of repeat exposure to the

conduct it challenges for two reasons. First, USFS has only authorized flights to Fred

Burr dam twice since the Wilderness Act was enacted in 1964, and no future flights

to the dam are planned or envisioned. Second, the relevant statutes and regulations

do not prohibit helicopter flights altogether, but rather permit them in certain

circumstances, subject to case-by-case determination. See 16 U.S.C. §§ 1133(c),

1134(b); 36 C.F.R. § 293.13.




                                           3
      Given that each flight authorization involves individualized consideration of the

particular dam’s maintenance requirements, the viability of non-motorized

alternatives, and the project’s impact on wilderness, the recurrence of circumstances

similar to those surrounding this flight is a mere “speculative possibility [that] does

not constitute a ‘reasonable expectation.’” W. Coast Seafood Processors Ass’n v.

Natural Res. Def. Council, Inc., 643 F.3d 701, 705 (9th Cir. 2011) (citing Sze v. INS,

153 F.3d 1005, 1009 (9th Cir. 1998)).2

      As a result, Watch’s challenge is moot, and the only relevant mootness

exception does not apply.

      DISMISSED.




      2
        As Watch must satisfy both prongs of this exception, we need not evaluate
whether the challenge “evades review.”
                                          4
