                                                                FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                                            April 3, 2015
                                        PUBLISH         Elisabeth A. Shumaker
                                                            Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


FRONT RANGE EQUINE RESCUE;
THE HUMANE SOCIETY OF THE
UNITED STATES; MARIN HUMANE
SOCIETY; HORSES FOR LIFE
FOUNDATION; RETURN TO
FREEDOM; RAMONA CORDOVA;
KRYSTLE SMITH; CASSIE GROSS;
DEBORAH TRAHAN; BARBARA
SINK; CHIEF DAVID BALD EAGLE;
CHIEF ARVOL LOOKING HORSE;
TANYA LITTLEWOLF; ROXANNE
TALLTREE-DOUGLAS;
FOUNDATION TO PROTECT NEW
MEXICO WILDLIFE; SANDY
SCHAEFER,
             Plaintiffs - Appellants,
      and                                         No. 13-2187
STATE OF NEW MEXICO,
             Plaintiff Intervenor -
             Appellant,
      v.
TOM VILSACK, Secretary, U.S.
Department of Agriculture; ELISABETH
A. HAGEN, Under Secretary for Food
Safety, U.S. Department of Agriculture;
ALFRED A. ALMANZA, Administrator,
Food Safety and Inspection Service, U.S.
Department of Agriculture,
             Defendants - Appellees,
      and
 RESPONSIBLE TRANSPORTATION,
 LLC; CONFEDERATED TRIBES AND
 BANDS OF THE YAKAMA NATION;
 RAINS NATURAL MEATS; VALLEY
 MEAT COMPANY, LLC; CHEVALINE,
 LLC; INTERNATIONAL EQUINE
 BUSINESS ASSOCIATION; NEW
 MEXICO CATTLE GROWERS’
 ASSOCIATION; SOUTH DAKOTA
 STOCKGROWERS ASSOCIATION;
 RANCHERS–CATTLEMEN ACTION
 LEGAL FUND UNITED
 STOCKGROWERS OF AMERICA;
 MARCY BRITTON; BILL AND JAN
 WOOD; LEROY WETZ; SHIRLEY
 WETZ; DOUG JOHNSON; JUDY
 JOHNSON; KUJYUKURI, LTD;
 UNITED HORSEMEN; SCENIC VIEW
 RANCH,
              Defendants Intervenors -
              Appellees.



 AMERICAN FARM BUREAU
 FEDERATION; NATIONAL
 CATTLEMEN’S BEEF ASSOCIATION;
 NEW MEXICO FARM AND
 LIVESTOCK BUREAU,
              Amici Curiae.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                   (D.C. No. 1:13–CV–00639–MCA–RHS)


Bruce A. Wagman of Schiff Hardin LLP, San Francisco, California (Rocky N. Unruh,
Schiff Hardin LLP, San Francisco, California, Ari Biernoff, Office of the Attorney

                                         -2-
General for the State of New Mexico, and Brian Egolf of Egolf+Ferlic+Day, LLC, Santa
Fe, New Mexico, with him on the briefs) for Plaintiffs–Appellants.

Mark R. Haag, Attorney, Environmental and Natural Resources Division, U.S.
Department of Justice (Thomas N. Bolick, Attorney–Advisor, Office of the General
Counsel, U.S. Department of Agriculture, of counsel; Robert G. Dreher, Acting Assistant
Attorney General, and Andrew A. Smith and Alison D. Garner, Attorneys,
Environmental and Natural Resources Division, U.S. Department of Justice, with him on
the briefs), Washington, D.C., for Defendants–Appellees.

Karen Budd-Falen and Kathryn Brack Morrow, Cheyenne, Wyoming; A. Blair Dunn and
Patrick J. Rogers, Albuquerque, New Mexico, for Defendants–Intervenors–Appellees.

Jay C. Johnson and Kathryn Kusske Floyd of Venable LLP, Washington, D.C., for Amici
Curiae.


Before BACHARACH, McKAY, and McHUGH, Circuit Judges.


McKAY, Circuit Judge.



       This appeal involves environmental challenges to a federal agency’s decisions to

grant inspection services for the slaughter and processing of horses and other equines at

three slaughterhouses. In the proceedings below, the district court affirmed the agency’s

grants of inspection. Plaintiffs—various organizations and individuals opposed to horse

slaughter—then filed this appeal to challenge the district court’s decision. However, one

slaughterhouse subsequently withdrew its application for inspection, a second

slaughterhouse surrendered its grant of equine inspection in order to obtain a grant of

inspection for cattle slaughter, and the third slaughterhouse failed to successfully

challenge a state permitting decision to allow only non-equine slaughter at the facility.

                                             -3-
Moreover, the current congressional appropriations act prohibits funding for equine

slaughter inspections. We accordingly dismiss this appeal and vacate the district court’s

decision based on mootness.

                                             I.

       Under the Federal Meat Inspection Act, “amenable species” of

livestock—including horses, mules, and other equines—may be slaughtered for human

consumption only after undergoing federal inspection. 21 U.S.C. § 603(a). Accordingly,

slaughter facilities wishing to conduct equine slaughter operations must apply for a grant

of inspection services from the Food Safety Inspection Service, a branch of the U.S.

Department of Agriculture. By regulation, equines may not be slaughtered at the same

facility as other livestock. 9 C.F.R. § 305.2(b). Thus, a grant of inspection for equines

will cause the agency to withdraw any previous grant of inspection for other species, and,

conversely, a grant of non-equine inspection causes the withdrawal of any previous

equine grant. (See Appellants’ App. at 411.)

       Between fiscal years 2006 and 2011, Congress prohibited the use of appropriated

funds for ante-mortem inspection of equines, thus effectively preventing commercial

horse slaughter from occurring in the United States. However, the 2012 and 2013

appropriations acts did not include this prohibition, and FSIS accordingly began moving

forward with plans to resume federal inspection of commercial equine slaughter.

       In June 2013, FSIS issued Directive 6130.1, which provides instructions to FSIS

inspectors on how to perform ante-mortem and post-mortem inspections of equine for

                                            -4-
slaughter. Among other things, the Directive provides for intensified random-drug-

residue testing of equines and explains how such testing should be conducted.

       After issuing the Directive, FSIS issued grants of inspection for equine processing

at two slaughterhouses—Valley Meat Company of Roswell, New Mexico, and

Responsible Transportation LLC of Sigourney, Iowa. The agency also announced it was

prepared to grant inspection to a third slaughterhouse, Rains Natural Meats of Gallatin,

Missouri, but it did not issue the grant at that time because the district court had already

issued a temporary restraining order in this case.

       Following FSIS’s issuance of the grants of inspection to the first two

slaughterhouses, Appellants commenced this federal action. In their complaint,

Appellants claimed the agency violated the National Environmental Policy Act by

preparing the Directive and issuing the grants of inspection without first preparing an

Environmental Impact Statement or Environmental Assessment to evaluate the possible

environmental impacts of equine slaughter operations. The district court initially granted

a temporary restraining order against the agency, but, after further consideration, it

concluded that the agency was not required to prepare an EIS or EA before issuing the

Directive and the grants of inspection. The court accordingly vacated the restraining

order and dismissed the action. Appellants then filed this appeal.

       Several recent developments have significantly changed the status of this

litigation. First, Congress again included a funding prohibition for equine inspection

services in its 2014 and 2015 appropriations acts. Second, Valley Meat Company

                                             -5-
decided to abandon all plans to slaughter equines and asked FSIS to withdraw its grant of

inspection. Third, Responsible Transportation LLC voluntarily surrendered its grant of

inspection for equines in order to obtain cattle slaughter inspection services instead.

Finally, the Missouri Department of Natural Resources issued Rains Natural Meats a

permit allowing the processing of only non-equine animals. Although Rains filed an

administrative appeal from this decision, it subsequently chose to voluntarily dismiss the

appeal and continue or resume non-equine slaughter operations. Accordingly, like

Responsible Transportation, Rains is currently operating under a non-equine grant of

federal inspection.

                                             II.

       Based on all of these factual developments, we find the case to be moot, and we

therefore dismiss the appeal for lack of jurisdiction.

       “Article III’s requirement that federal courts adjudicate only cases and

controversies necessitates that courts decline to exercise jurisdiction where the award of

any requested relief would be moot—i.e. where the controversy is no longer live and

ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994). A case is

moot where “the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome,” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396

(1980), or where the “relief sought can no longer be given or is no longer needed,” In re

Jennings Oil Co., 4 F.3d 887, 889 (10th Cir. 1993). Stated differently, “[t]he crucial

question is whether granting a present determination of the issues offered will have some

                                             -6-
effect in the real world.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d

1096, 1110 (10th Cir. 2010) (internal quotation marks omitted).

       In this case, the relief Appellants sought was to set aside the grants of equine

inspection to Valley Meat and Responsible Transportation, as well as the intended grant

of equine inspection to Rains Natural Meats. The parties are in agreement that Valley

Meat’s voluntary withdrawal of its grant of inspection and its decision to abandon all

plans for equine slaughter have mooted the claims related to this facility. As for the other

two grants, Appellants assert that their challenges to these grants have likewise become

moot due to subsequent developments, while Appellees argue that there remains a live

case or controversy regarding these grants. After due consideration, we agree with

Appellants that their challenges to all three of the grants of inspection are now moot

because a present determination of the issues presented would have no real-world effect.

       It is undisputed that Responsible Transportation surrendered its grant of equine

inspection in order to process non-equine species at its facility. Nevertheless, the federal

Appellees argue that Responsible Transportation “may seek to switch back to equines

after the funding ban expires,” (Appellees’ Br. at 27 n.10). They suggested at oral

argument that the surrendered grant of inspection is still relevant to the real world

because, if Congress again removes the funding ban and Responsible Transportation then

re-applies for an equine grant of inspection, the agency may rely on some of its

determinations relating to the initial grant in order to conduct a much more limited review

of the new application. However, we are persuaded the contingent possibility that

                                             -7-
Responsible Transportation might apply for a new grant of equine inspection does not

give rise to a current case or controversy, regardless of whether the former grant could

have some future influence on the agency’s consideration of a hypothetical new request

for equine inspection. If Congress chooses to fund equine inspection again, if

Responsible Transportation then chooses to apply for a new grant of equine inspection,

and if FSIS decides to issue a grant of inspection to Responsible Transportation, then an

active case or controversy may arise—and it may even resurrect some of the issues that

are no longer live in this case. However, this speculative possibility of a future

controversy does not provide us with Article III jurisdiction to evaluate Appellants’

challenges to a surrendered grant of inspection that now has no force or effect in the real

world. “We are without power to render an advisory opinion on a question simply

because we may have to face the same question in the future.” NLRB v. Globe Sec.

Servs., Inc., 548 F.2d 1115, 1118 (3d Cir. 1977).

       As for Rains Natural Meats, it is undisputed this facility is currently processing

non-equine species and lacks the necessary state permits to switch to equine slaughter,

even if the funding ban ends and FSIS goes through with its intended plans to issue Rains

a grant of equine inspection. In their brief, the federal Appellees argue that Appellants’

challenge to the intended grant of equine inspection to Rains “may be become moot if the

state proceedings ultimately prevent [Rains] from slaughtering horses for human

consumption,” but they contend that “the final outcome of those state proceedings is

unknown.” (Appellees’ Br. at 27.) However, Appellees present neither argument nor

                                             -8-
authority to refute Appellants’ contention that the state’s decision not to allow equine

processing at Rains’ facility became final when Rains decided to voluntarily dismiss its

administrative appeal of the permitting decision. As with Responsible Transportation, it

is possible that a live case or controversy may arise in the future if Congress decides to

allow funding for equine inspections, Rains Natural Meats decides to switch from non-

equine slaughter to equine slaughter, the state permitting authority changes its decision,

and FSIS follows through with its original plans of issuing a grant of equine inspection to

Rains. However, this contingent possibility does not defeat the current mootness of

Appellants’ challenges to an intended grant of inspection that was not issued and would

have no current effect in the real world even if it were due to both the congressional

funding ban and the final state permitting decision. Cf. Jones v. Temmer, 57 F.3d 921,

923 (10th Cir. 1995) (“[D]efendants assert that the claims are not moot because the

Colorado legislature remains free to reinstate the old law at a later date. We view this

possibility as too conjectural and speculative to avoid a finding of mootness.”).

       We are not persuaded by Appellees’ argument that this case falls under the

“narrow exception” to the mootness doctrine for issues “capable of repetition, yet evading

review.” Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220, 1229 (10th Cir. 2012)

(internal quotation marks omitted). Although it is possible the legal issues raised in this

case may arise again, there is no evidence these issues will evade judicial review in the

future. See Rio Grande Silvery Minnow v. Keys, 355 F.3d 1215, 1220 (10th Cir. 2004).

Appellees speculate that Congress may again open up a brief window in which funding

                                             -9-
for equine inspections will be permitted, only to slam this window shut again before

challenges to environmental decisions regarding equine inspections can be fully litigated

in court proceedings. However, this bare speculation cannot substitute for actual

“evidence from which we might infer that this governmental behavior is necessarily of

short duration.” Wyoming v. U.S. Dep’t of Interior, 674 F.3d at 1229 (internal quotation

marks, ellipses, and brackets omitted); cf. United States v. Seminole Nation, 321 F.3d 939,

943 (10th Cir. 2002) (applying the “capable of repetition, yet evading review” exception

to review challenges to temporary regulatory orders that were necessarily of short

duration because, by statute, they would cease to be in effect no later than ninety days

after their issuance). Similarly, we will not invoke this narrow exception to the mootness

doctrine based on Appellees’ speculation that slaughterhouses in future cases may again

switch to non-equine slaughter while litigating the legality of their equine grants of

inspections. We are simply not convinced that the controversies involved in this case are

“by nature, so ephemeral as to elude the processes of judicial review.” Beattie v. United

States, 949 F.2d 1092, 1094 n.2 (10th Cir. 1991); cf. DeFunis v. Odegaard, 416 U.S. 312,

319 (1974) (“Moreover, just because this particular case did not reach the Court until the

eve of the petitioner's graduation from law school, it hardly follows that the issue he

raises will in the future evade review.”).

       Finally, Appellees argue that the case is not moot because Appellants’ complaint

challenged the Directive which provided instructions for federal equine inspections as

well as the equine inspection grants themselves. However, since the only grants of equine

                                             -10-
inspection issued by FSIS have been withdrawn or surrendered, the intended grant to

Rains has been made ineffective by a state permitting decision, and Congress has

prohibited the funding of equine inspections. Any present determination of the

controversy regarding the Directive would have no effect in the real world. Appellants’

challenges to the Directive were based on the alleged environmental effects of the equine

slaughter operations whose inspections would have been conducted according to the

Directive’s instructions. Since the resumption of equine slaughter operations is now only

speculative, however, Appellants’ challenges to the Directive do not present a current

case or controversy. If Congress decides to fund equine inspections again, and if FSIS

issues a grant of inspection to a slaughterhouse that is able to obtain the necessary state

permits to operate, the Directive may then have an effect on the real world. At this time,

however, we lack Article III jurisdiction to consider Appellants’ challenges to the

Directive—an agency document which is not currently in use and which has no definite

future. We therefore conclude that this case is moot in its entirety.

       Appellants contend we should vacate the district court’s judgment because

appellate review of the district court’s decision has been prevented by mootness that was

out of Appellants’ control. Vacatur is generally appropriate when a case becomes moot

because of happenstance or the prevailing party’s unilateral action, based on the

underlying “equitable principle [that] a party should not have to bear the consequences of

an adverse ruling when frustrated by the vagaries of the circumstances.” Rio Grande

Silvery Minnow, 355 F.3d at 1221 (internal quotation marks omitted); see also Amoco Oil

                                            -11-
Co. v. U.S. EPA, 231 F.3d 694, 698 (10th Cir. 2000); Jones, 57 F.3d at 923. The issues in

this appeal were mooted by unilateral decisions made by the slaughterhouse

Intervenors–Appellees and by various government officials, not by any action of

Appellants. We therefore agree with Appellants that vacatur of the district court’s

judgment is appropriate.

                                           III.

       For the foregoing reasons, the district court’s judgment is VACATED, and the

appeal is DISMISSED as moot.




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