                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 12 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NATIVE ECOSYSTEMS COUNCIL, a                     No. 14-35518
non-profit organization; ALLIANCE FOR
THE WILD ROCKIES, a non-profit                   DC No. CV 13-0167 DLC
organization,

              Plaintiffs - Appellants,           MEMORANDUM*

 v.

FAYE KRUEGER, in her official capacity
as Regional Forester for the United States
Forest Service, Region One; UNITED
STATES FOREST SERVICE, an agency
of the U.S. Department of Agriculture;
U.S. FISH & WILDLIFE SERVICE, an
agency of the U.S. Department of Interior,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                        Argued and Submitted May 3, 2016
                                Portland, Oregon

Before:       TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiffs-Appellants Native Ecosystems Council and Alliance for the Wild

Rockies challenge a decision of the United States Forest Service (the “Forest

Service”) to remove certain trees from alongside public roads in the Gallatin

National Forest in Montana. A portion of the forest was severely burned in a 2012

wildfire. The Forest Service, believing that dead and dying trees posed a hazard to

users of the public roads, proposed the Millie Project to remove these trees.

      The project area, however, included land designated as critical habitat for

Canada lynx. After exhausting their administrative remedies Plaintiffs challenged

the Millie Project in district court, arguing that the trees’ removal adversely

affected lynx and their critical habitat, in violation of the Endangered Species Act.

The district court disagreed and granted summary judgment for the Forest Service.

      While this appeal was pending, the Forest Service completed the Millie

Project. The Service removed all hazardous trees from the project area as of

November 24, 2014; all remaining activities associated with the project were

completed or deemed unnecessary as of July 9, 2015. Accordingly, the

government now argues that the case is moot. We agree.

      An appeal becomes moot, and the court can no longer exercise its appellate

jurisdiction, when “the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Nw. Envtl. Def. Ctr. v. Gordon, 849


                                           2
F.2d 1241, 1244 (9th Cir. 1988) (quoting Murphy v. Hunt, 455 U.S. 478, 481

(1982) (per curiam)). “The basic question . . . is whether there is a present

controversy as to which effective relief can be granted.” Feldman v. Bomar, 518

F.3d 637, 642 (9th Cir. 2008) (quoting Gordon, 849 F.2d at1244). It is the

government’s burden to prove mootness, see Sierra Forest Legacy v. Sherman, 646

F.3d 1161, 1192 (9th Cir. 2011), and “[t]he burden of demonstrating mootness is a

heavy one,” Gordon, 849 F.2d at 1244.

      Here, the government has met its burden because no effective relief remains

that can be granted. We cannot enjoin a completed project, and a declaratory

judgment would have no practical effect.

      Plaintiffs argue that under Neighbors of Cuddy Mountain v. Alexander, 303

F.3d 1059 (9th Cir. 2002), effective relief is still available because the Court could

require the Forest Service to take steps to mitigate any damage caused by the

project. That case, however, has no application here. In Cuddy Mountain, the

plaintiffs asked the court to counteract ongoing, forest-wide effects of the Forest

Service’s actions. Id. at 1065-66. Here, there are no ongoing effects to counteract.

Plaintiffs essentially ask us to order the Forest Service to complete the project

differently, by leaving more downed trees on the forest floor to provide cover to

traveling lynx. But the project has already been completed, the trees removed, and


                                           3
no future action is contemplated. See Feldman, 518 F.3d at 643 (holding case was

moot where plaintiffs did not “face a continuous, remediable harm that concretely

affect[ed] their existing interests” (internal quotation marks omitted)). Because we

can order no effective relief to remedy Plaintiffs’ alleged injuries, we dismiss the

appeal as moot.

      Each side shall bear its own costs on appeal.

      DISMISSED.




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