                                                              F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                              March 1, 2006
                              TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                               Clerk of Court

W. WESLEY WALLACE,
individually; NATIONAL PUBLIC
LANDS COUNCIL; FRED
ROBERTS, individually and as a
member of the National Public Lands
Council; FNF PROPERTIES, L.L.C., a
corporation, individually and as a
member of the National Public Lands
Council,

          Plaintiffs - Appellants,

v.                                            No. 04-1350

BUREAU OF LAND
MANAGEMENT, actually named as
“United States Bureau of Land
Management” an agency of the United
States Department of the Interior;
GALE NORTON, Secretary of the
nited States Department of the Interior
in her official capacity; KATHLEEN
CLARKE, Acting Director of the
Bureau of Land Management in her
official capacity; CALVIN N.
JOYNER, Field Manager of the San
Juan Field Office of the United States
Bureau of Land Management in his
official capacity; JEFF RAWSON,
Field Manager of the Kemmerer Field
Office in his official capacity; EDWIN
J. SINGLETON, Field Manager of the
Albuquerque Field Office in his
official capacity,

          Defendants - Appellees.
                            ORDER AND JUDGMENT          *




Before HARTZ , SEYMOUR , and McCONNELL , Circuit Judges.


      Ranchers from Colorado, Wyoming, and New Mexico challenge the

modification of their federal grazing permits and the requirements for obtaining a

stay when the Bureau of Land Management (BLM) modifies permits. Because

some of the plaintiffs have abandoned their claims and the remaining Plaintiff

seeks only declaratory relief with respect to an as-applied challenge to an expired

permit, the case is moot and we   VACATE the judgment below and remand with

instructions to DISMISS all claims for lack of jurisdiction.

                                   I. Background

      The four Plaintiffs challenge decisions by the BLM to modify certain

grazing permits issued under the Taylor Grazing Act, 43 U.S.C. § 315 et seq. W.

Wesley Wallace is a rancher in Cortez, Colorado, and he has grazing permits for


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.



                                        -2-
several BLM allotments. In November 2001, after Mr. Wallace was late in

submitting his grazing application, the BLM reduced his grazing permit for the

Cahone Mesa allotment from 1,734 animal unit months to 1,117. In December

2001 Mr. Wallace appealed the BLM decision and filed a petition to stay its

implementation, pursuant to 43 C.F.R. § 4.21(b). In March 2001 the Interior

Board of Land Appeals (IBLA) denied the stay request, and the reduction in

grazing use became effective immediately. Mr. Wallace subsequently dismissed

his administrative appeals.

      Fred Roberts is a rancher with a grazing permit for the Smiths Fork

allotment in western Wyoming. In August 2001 the BLM reduced the number of

cattle and sheep that Mr. Roberts could graze, as well as the length of the grazing

season. None of these changes applied beyond the 2004 grazing season. The next

month Mr. Roberts appealed the decision and petitioned for a stay. In January

2002 the IBLA denied the stay petition, holding that Mr. Roberts had not shown

the likelihood of success on the merits required by 43 C.F.R. § 4.21(b). The

reduction took effect immediately .

      The third Plaintiff, FNF Properties, holds a grazing permit for the El

Malpais allotment in Cibola County and Catron County in New Mexico. In

December 1999 the BLM reduced the number of livestock that FNF could graze.




                                         -3-
FNF did not file a stay petition and the decision went into effect. FNF appealed

the decision and has since settled its case.

       The final Plaintiff is the National Public Lands Council (NPLC). NPLC

has identified as affected members only Mr. Roberts and FNF Properties, who are

both named Plaintiffs.

       The Plaintiffs argue that the modifications to their grazing permits should

have been stayed pending appeal, notwithstanding 43 C.F.R. § 4.21. As of 1995,

this regulation allows modifications to grazing permits to go into effect

immediately unless the owner of the permit obtains a stay from the Interior Board

of Land Appeals, and it makes the owner of the grazing permit bear the burden of

proving that a stay is appropriate.   See 60 Fed. Reg. 9950 (Feb. 27, 1995); 43

C.F.R. §4.21(b). Although the Plaintiffs challenge the modifications of their

permits and the lack of an automatic stay, they seek only declaratory relief. The

Plaintiffs have consistently characterized their suit as an as-applied challenge.




                                      II. Mootness

       We requested supplemental briefing on mootness and prescribed a limit of

eight pages for each brief. The Plaintiffs submitted a three-page brief, counting

the cover and signature pages, that declined to make arguments other than those


                                           -4-
made in the Reply Brief. The Government submitted an eighteen-page brief with

several attachments. The Plaintiffs responded with a motion to strike the

Government’s supplemental brief. We decline to do so. Despite the

Government’s error in submitting a brief that exceeded the limit by ten pages, the

Plaintiffs were hardly disadvantaged. They were not constrained by the eight-

page limitation, given that they declined in supplemental briefing even to argue

the question we posed. Accordingly, in this case, without evidence of willful

misconduct, we deny the motion to strike the Government’s supplemental brief.

       We address the mootness of the claims as a “threshold inquiry, because the

existence of a live case or controversy is a constitutional prerequisite to the

jurisdiction of the federal courts.”   Dais-Naid, Inc. v. Phoenix Resource Cos. (In

re Texas Int’l Corp.) , 974 F.2d 1246, 1247 (10th Cir. 1991). We have power to

consider only those cases where the resolution will affect the rights of the

litigants. See Preiser v. Newkirk , 422 U.S. 395, 401 (1975). We review mootness

de novo. Disability Law Ctr. v. Millcreek Health Ctr.    , 428 F.3d 992, 996 (10th

Cir. 2005).

       We conclude that the claims of all four Plaintiffs are moot. The claims of

two Plaintiffs, Mr. Wallace and FNF Properties, are unarguably moot. Both

dismissed their administrative appeals against the BLM, and without these

appeals, we have no reason to stay the implementation of the BLM decisions. No


                                            -5-
live controversy of any sort remains. Another Plaintiff, NPLC, has identified no

affected members besides the named Plaintiffs, and thus has no distinct rights to

vindicate. Its claims rise or fall with those of the remaining Plaintiff, Mr.

Roberts. Cf. Arizonans for Official English v. Arizona   , 520 U.S. 43, 65–66 (“An

association has standing to sue or defend in such capacity, however, only if its

members would have standing in their own right.”).

      Mr. Roberts challenges a BLM decision that was issued on August 2, 2001

and affected his permit that expired at the end of the 2004 grazing season. More

recently, the BLM issued another final decision that defined grazing limits

through 2015 for Mr. Roberts and the other holders of permits for the Smiths Fork

allotment. Mr. Roberts and other permittees are currently challenging the new

policy, and an administrative law judge has denied their petition for a stay.

      Mr. Roberts offers two reasons not to treat his claim as moot. The first is

that the claim falls within an exception to mootness for cases “capable of

repetition yet evading review.”   Southern Pacific Terminal Co. v. ICC   , 219 U.S.

498, 515 (1911); Roe v. Wade , 410 U.S. 113, 125 (1973). Mr. Roberts’s claim is

certainly capable of repetition. Even though the challenged modification affected

a permit that has expired, his new permit could be modified, and the grazing

regulations that establish the procedures for obtaining a stay—the ones that Mr.

Roberts objects to—are still in force. But a challenge to a grazing permit


                                          -6-
modification or to the stay regulations will not evade review. The subsequent

challenge to the grazing permits for 2005 through 2015 is winding its way

through administrative hearings. Mr. Roberts could challenge an adverse

judgment in federal court and seek injunctive relief. And the expiration or

renewal of Mr. Roberts’s grazing permit, recently extended through 2015, would

not moot a facial challenge to the regulations for obtaining a stay.

      Second, Mr. Roberts claims that the agency’s cessation of an action does

not moot his challenge to a policy. We might consider this argument if a facial

challenge to the agency policy had been made, but with an as-applied challenge

we consider the policy only as it applies in a particular circumstance to a

particular plaintiff. Therefore, because Mr. Roberts asks (1) only for declaratory

relief (2) in an as applied challenge (3) to an expired grazing permit, his claims,

like those of the other Plaintiffs, are moot.

      Both parties have requested that the judgment below be vacated if we find

the claims moot. We agree that vacature is appropriate because the expiration of

the grazing permit was beyond their control.     See Shawnee Tribe v. United States   ,

405 F.3d. 1121, 1135 (2005).



                                    III. Conclusion




                                           -7-
       Because all of the Plaintiffs’ claims are moot, we   VACATE the district

court’s decision and remand with instructions to      DISMISS the claims.

Appellant’s motion to strike, is   DENIED .

                                                        Entered for the Court,

                                                        Michael W. McConnell
                                                        Circuit Judge




                                            -8-
