                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


NATIONAL ASSOCIATION OF HOME        :
BUILDERS,                           :
                                    :
                 Plaintiff,         :
                                    :
           v.                       : Civil Action No. 10-832 (GK)
                                    :
KEN SALAZAR, Secretary of the       :
Interior, and U.S. FISH AND         :
WILDLIFE SERVICE,                   :
                                    :
                 Defendants.        :


                         MEMORANDUM OPINION

     Plaintiff   National Association   of Home    Builders   (“NAHB”)

brings this suit against Defendants, Secretary of the Interior Ken

Salazar (the “Secretary”) and the U.S. Fish and Wildlife Service

(“FWS”), for declaratory and injunctive relief, pursuant to the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 7061 et seq., and

the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g). NAHB

challenges the validity of a memorandum drafted by the Solicitor of

the Department of the Interior that interprets a phrase in the

definitions of “endangered species” and “threatened species” under

the ESA.

     This matter is now before the Court on Plaintiff’s Request for

Entry of Final Judgment (“Pl.’s Request”) [Dkt. No. 21], and

Defendants’ Second Motion to Dismiss (“Defs.’ Mot.”) [Dkt. No. 22].

Upon consideration of the Motions, Oppositions, and Replies, and

the entire record herein, and for the reasons stated below, the
Court    finds   that   NAHB’s     claims   are   now   moot,   and   therefore

Plaintiff’s Request for Entry of Final Judgment is denied and

Defendants’ Second Motion to Dismiss is granted.

I.   BACKGROUND1

     The ESA is the “‘most comprehensive legislation for the

preservation of endangered species ever enacted by any nation.’”

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,

515 U.S. 687, 698 (1995) (quoting Tennessee Valley Auth. v. Hill,

437 U.S. 153, 180 (1978)). When Congress enacted the statute in

1973, it intended to bring about the “better safeguarding, for the

benefit of all citizens, [of] the Nation’s heritage in fish,

wildlife, and plants.” 16 U.S.C. § 1531(a)(5). Having found that a

number of species of fish, wildlife, and plants in the United

States had become extinct “as a consequence of economic growth and

development      untempered   by   adequate   concern    and conservation,”

Congress enacted the ESA in order to “provide a means whereby the

ecosystems upon which endangered and threatened species depend may

be conserved, [and] to provide a program for the conservation of

such endangered species.” Id. §§ 1531(a)(1), (b).




     1
       For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, unless otherwise noted, the facts set forth
herein are taken from the Complaint.

                                       2
      The ESA imposes certain responsibilities on the Secretary of

the Interior, who has delegated day-to-day authority for its

implementation to FWS. See 16 U.S.C. § 1531(b); 50 C.F.R. §

402.01(b). The ESA’s protection of a species and its habitat is

triggered only when FWS “lists” a species in danger of becoming

extinct as either “endangered” or “threatened.” See 16 U.S.C. §

1533.2

      A species is “endangered” when it is in “danger of extinction

throughout all or a significant portion of its range.” 16 U.S.C.

§   1532(6).3   On   March   16,   2007,   the   then   Solicitor   for   the

Department of the Interior, David Longly Bernhardt, issued a

memorandum defining “a significant portion of its range.” Mem. M-

37013 (March 16, 2007) (the “SPR Memorandum”) [Dkt. No. 9-2].

According to NAHB, the SPR Memorandum improperly “allows the

Secretary to list a population of a species as endangered or

threatened under the ESA irrespective of whether that population

consists of a species of vertebrate fish or wildlife and whether it

qualifies as a distinct population segment” under previous policy.

Compl. ¶ 38 [Dkt. No. 1].



      2
       The Act defines a “species” as “any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.” Id. § 1532(16).
      3
       When a species is “likely to become an endangered species
within the foreseeable future,” the statute defines it as
“threatened.” Id. § 1532(20).

                                      3
     On May 19, 2010, NAHB filed its Complaint. It alleges that

Defendants have violated both the APA and ESA by failing to issue

a notice of proposed rulemaking in the Federal Register and failing

to provide interested persons an opportunity to comment before

publishing    the    SPR    Memorandum.     NAHB    also   alleges   that    the

interpretation of a “significant portion of its range” embodied in

the SPR memorandum was in excess of the Secretary’s statutory

authority and was arbitrary, capricious, or otherwise not in

accordance    with   law.    NAHB   seeks   a   declaratory    judgment     that

Defendants’ issuance of the SPR Memorandum violated the APA and

ESA. NAHB further requests an order vacating the Memorandum and

enjoining     Defendants     from   applying       its   interpretation     when

determining a species’ eligibility for listing as endangered or

threatened.

     This case is not the only one in which the SPR Memorandum has

played a central role. According to NAHB, FWS has applied the SPR

Memorandum more than twenty-five times when considering whether the

range of a species or a portion of its range should be listed or

delisted under the ESA. Pl.’s Opp’n 20 [Dkt. No. 25]. As a result

of lawsuits challenging these decisions, two district courts have

now rejected the SPR Memorandum’s interpretation, as applied to

specific species. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d

1207, 1218-19 (D. Mont. 2010); WildEarth Guardians v. Salazar, No.

CV-09-00574-PHX-FJM, 2010 WL 3895682, at *3-6 (D. Ariz. Sept. 30,


                                       4
2010). The SPR Memorandum is also involved in two other cases, not

including this one. Center for Native Ecosystems v. Salazar, No.

09-cv-01463 (JLK) (D. Colo.);4 Center for Biological Diversity v.

Salazar, No. 09-cv-2233 (PLF) (D.D.C.).

     In response to these lawsuits, the current Solicitor of the

Department of the Interior, Hilary C. Tompkins, announced, on May

4, 2011, that she was withdrawing the SPR Memorandum. Mem. M-37024

(May 4, 2011) (the “Withdrawal Memorandum”), Ex. B to Pl.’s Request

[Dkt. No. 21-1]. In the Withdrawal Memorandum, the Solicitor stated

that the SPR Memorandum was withdrawn in order “to facilitate FWS’s

review of the SPR phrase and issuance of new guidance.” Id.

     On May 5, 2011, the parties jointly informed the Court that

the SPR Memorandum had been withdrawn and asked the Court to cancel

a scheduled motion hearing on Defendants’ first Motion to Dismiss.

Notice of Withdrawal of Challenged Memorandum [Dkt. No. 17]. After

nearly two months of negotiation, the parties informed the Court

that they could not reach a settlement and that they would file

renewed dispositive   motions.   Stipulated   Briefing   Schedule   and

Proposed Order (July 1, 2011) [Dkt. No. 19].

     On July 7, 2011, NAHB filed its Request for Entry of Final

Judgment. On July 11, 2011, Defendants filed their second Motion to



     4
       On July 7, 2011, Center for Native Ecosystems was remanded
to FWS after the SPR Memorandum was withdrawn and the species in
question was “delisted” as threatened. —F. Supp. 2d—, 2011 WL
2646515, at *6 (D. Colo. July 7, 2011).

                                 5
Dismiss. On August 5, 2011, Defendants filed an Opposition to

NAHB’s Request for Final Judgment (“Defs.’ Opp’n”) [Dkt. No. 23].

On August 18, NAHB filed both a Reply to Defendants’ Opposition

(“Pl.’s Reply”) [Dkt. No. 24] and an Opposition to Defendants’

Motion to Dismiss (“Pl.’s Opp’n”) [Dkt. No. 25]. Finally, on

September 6, Defendants filed a Reply to NAHB’s Opposition to the

Motion to Dismiss (“Defs.’ Reply”) [Dkt. No. 26].

II.   STANDARD OF REVIEW

      Under Rule 12(b)(1), Plaintiff bears the burden of proving by

a preponderance of the evidence that the Court has subject matter

jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932 (D.C. Cir.

2008). In reviewing a motion to dismiss for lack of subject matter

jurisdiction, the Court must accept as true all of the factual

allegations set forth in the Complaint; however, such allegations

“will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wilbur

v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and

quotations omitted). The Court may consider matters outside the

pleadings. See Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,

197 (D.C. Cir. 1992). The Court may also rest its decision on its

own resolution of disputed facts. Id.

III. ANALYSIS

      Although NAHB seeks an immediate judgment on the merits, the

threshold and dispositive question now before the Court is whether


                                 6
the   withdrawal      of   the   SPR   Memorandum       moots   NAHB’s    claims.

Defendants    argue    that,     because    they     have   withdrawn     the   SPR

Memorandum and promised to provide a period for notice and comment

before issuing any new policy, “there is no longer any relief for

the Court to grant even if the plaintiff were to prevail on its

claim.” Defs.’ Mot. 6. Therefore, “[t]here is no longer a live

controversy in this case.” Id.

      “The mootness doctrine, deriving from Article III, limits

federal courts to deciding ‘actual, ongoing controversies.’” Clarke

v. United States, 915 F.2d 699, 700–01 (D.C. Cir. 1990), quoting

Honig v. Doe, 484 U.S. 305, 317 (1988). Federal courts have “no

authority    ‘to   give    opinions    upon      moot   questions    or   abstract

propositions, or to declare principles or rules of law which cannot

affect the matter in issue in the case before it.’” Church of

Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting Mills

v. Green, 159 U.S. 651, 653 (1895)).

      Therefore, “[i]f it becomes ‘impossible for the court to grant

any   effectual    relief    whatever       to   a   prevailing     party’   on   a

particular claim, that claim must be dismissed.” Theodore Roosevelt

Conservation P’ship v. Salazar, 661 F.3d 66, 79 (D.C. Cir. 2011)

(quoting Church of Scientology, 506 U.S. at 12). “Even where

litigation poses a live controversy when filed, the doctrine

requires a federal court to refrain from deciding it if ‘events

have so transpired that the decision will neither presently affect


                                        7
the parties’ rights nor have a more-than-speculative chance of

affecting them in the future.’” Clark, 915 F.2d at 701 (quoting

Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir.

1990)).

       NAHB    does    not   contest      that   the    withdrawal     of   the    SPR

Memorandum comes within the ambit of the mootness doctrine. Rather,

NAHB contends that its claims are saved by the voluntary cessation

doctrine, which provides that voluntary cessation of allegedly

illegal conduct typically does not moot a case. Pl.’s Opp’n 11.

       NAHB is correct that, “[a]s a general rule, a defendant’s

‘voluntary cessation of allegedly illegal conduct does not deprive

[a court] of power to hear and determine the case.’” Am. Bar Ass’n

v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011) (quoting Cnty. of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979)). However, a court may

find    that    a     defendant’s    voluntary         conduct   has   mooted      the

controversy if “(1) there is no reasonable expectation that the

conduct   will      recur    and    (2)   ‘interim      relief   or    events     have

completely and irrevocably eradicated the effects of the alleged

violation.’” Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449,

459 (D.C. Cir. 1998) (quoting Cnty. of Los Angeles v. Davis, 440

U.S. 625 (1979)); see also Nat’l Black Police Ass’n, et al. v.

District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)).

       In short, the parties disagree on two issues: (1) whether

there is a reasonable expectation that Defendants will revive the


                                           8
SPR Memorandum and (2) whether interim events have eradicated the

effects of the SPR Memorandum. Each will be addressed in turn.

     A.   Expectation that Conduct Will Recur

     As an initial matter, the parties disagree about the burden

the Defendants must bear in demonstrating that the challenged

conduct is unlikely to recur. NAHB emphasizes that “a defendant

that voluntarily ceases activities challenged by the plaintiff, and

then moves to dismiss on the grounds of mootness, bears a ‘heavy

burden’ of proof to demonstrate that the challenged action will not

happen again.” Pl.’s Opp’n 14 (quoting Cmty. Hous. Trust v. Dep’t

of Cons. and Reg. Affairs, 257 F. Supp. 2d 208, 218 (D.D.C. 2003)).

Defendants, on the other hand, urge the Court to adopt the Eleventh

Circuit’s rule that “when the defendant is not a private citizen

but a government actor, there is a rebuttable presumption that the

objectionable behavior will not recur.” Troiano v. Supervisor of

Elections in Palm Beach, 382 F.3d 1276, 1283 (11th Cir. 2004)

(emphasis in original).5



     5
        The Fifth and Seventh Circuits have employed similar
presumptions. See Sossamon v. Lone Star State of Texas, 560 F.3d
316, 325 (5th Cir. 2009) (“courts are justified in treating a
voluntary governmental cessation of possibly wrongful conduct with
some solicitude . . . . Without evidence to the contrary, we assume
that formally announced changes to official governmental policy are
not mere litigation posturing.”); Fed’n of Adver. Indus.
Representatives, Inc. v. City of Chicago, 326 F.3d 924, 930 (7th
Cir. 2003) (“we have repeatedly held that the complete repeal of a
challenged law renders a case moot, unless there is evidence
creating a reasonable expectation that the City will reenact the
ordinance or one substantially similar.”).

                                9
     Our own Court of Appeals has not spoken directly to this

issue. However, even in the absence of a formal presumption, it is

clear from precedent in this Circuit that Defendants have carried

their burden. In particular, our Court of Appeals has held that

“the mere power to reenact a challenged law is not a sufficient

basis on which a court can conclude that reasonable expectation of

recurrence exists. Rather, there must be evidence indicating that

the challenged law likely will be reenacted.” Nat’l Black Police

Ass’n, 108 F.3d at 349.

     NAHB argues, in substance, that because Defendants have not

unequivocally foreclosed developing a similar policy in the future,

and because Defendants have not admitted culpability in this

proceeding, the Court should find that there is a reasonable

expectation that the challenged conduct will recur. Pl.’s Opp’n 11-

17. But these claims simply fail to satisfy the requirement that

there be some “evidence indicating that the challenged law likely

will be reenacted.” Nat’l Black Police Ass’n, 108 F.3d at 349.

     Indeed, not only did the Solicitor withdraw the SPR Memorandum

to allow FWS to review the SPR phrase and issue new guidance, but

FWS has publicly stated that it “intends to publish shortly, for

notice   and   comment,   a   proposed   joint   policy   regarding   the

interpretation   and   implementation    of   the   phrase   ‘significant

portion of its range.’” Gray Wold Recovery and Delisting Questions

and Answers May, 2011, http://www.fws.gov/home/feature/2011/pdf


                                   10
/Wolf_Actions_Faqs.pdf (last visited Dec. 5, 2011); see also Decl.

of Gary Frazier, July 8, 2011, ¶ 7 [Dkt. No. 22-2]. According to

Gary Frazier, the Assistant Director for Endangered Species at FWS,

a draft of this new “joint SPR Language” was approved by the

Department of the Interior on June 7, 2011. Decl. of Gary Frazier,

July 8, 2011, ¶ 8. As of July 8, 2011, that draft was being

reviewed   by   the   Office   of   Management   and   Budget   prior   to

publication in the Federal Register and public review and comment.

Id.

      In light of this information, and contrary to NAHB’s claims,

it is quite clear that Defendants have in fact foreclosed the

possibility that the alleged procedural violations will recur. Nor

is there evidence that the challenged substantive policy will be

repromulgated. See Natural Res. Def. Council, Inc. v. United States

Nuclear Regulatory Comm’n, 680 F.2d 810, 814 n.8 (D.C. Cir. 1982)

(no reasonable expectation that illegal conduct will recur where

the defendant repromulgated the challenged rule with notice and

comment.). Therefore, there is no reasonable expectation that the

conduct will recur. Nat’l Black Police Ass’n, 108 F.3d at 349.

      B.   Effects of Withdrawn Policy

      NAHB argues that “Defendants also fail to demonstrate that

withdrawal of the SPR Decision has completely and irrevocably

eradicated the effects of that unlawful decision on NAHB and its

members.” Pl.’s Opp’n 20. Specifically, NAHB contends that (1)


                                    11
“Defendants have not addressed the effects of withdrawal of the SPR

Decision on those prior listing decisions that are currently in

force” and (2) “Defendants have not provided any irrevocable

assurance or taken any irrevocable action showing that FWS will

actually comply with the procedural requirements of the ESA and the

APA relating to their interpretation of the SPR Phrase.” Id. at 20-

21. NAHB’s second argument is nothing more than a reworded version

of its claims under the ‘likely to recur’ prong, and therefore can

be dismissed for the reasons given above.

       NAHB’s   first   argument,   namely   that   Defendants   have   not

revisited all of the prior listing decisions in which they cited

the SPR Memorandum, is similarly unconvincing. NAHB has made

crystal clear that it brings only a facial challenge to the SPR

Memorandum and seeks only declaratory and injunctive relief. Pl.’s

Request 7-8. NAHB has not actually alleged that any specific

listing or delisting is illegal, nor does the Court have any of the

facts or parties in the other SPR Memorandum-related cases before

it.6




       6
       In fact, Defendants point out “that the legal interpretation
of the SPR phrase affected a judicially reviewable listing
determination in only a handful of cases, where the Service
determined that there was a significant portion of the range where
the threat level was different from that for the rest of the
species.” Defs.’ Reply 7. Each of those rules has already been
vacated by court order. Id. (citing Center for Native Ecosystems,
—F. Supp. 2d—, 2011 WL 2646515; Defenders of Wildlife, 729 F. Supp.
2d 1207; WildEarth Guardians, 2010 WL 3895682).

                                    12
     Ample      precedent     demonstrates      that    a    lawsuit    seeking

declaratory and injunctive relief is moot when the challenged

policy is withdrawn. Pl.’s Request 2-3. As our Court of Appeals has

stated, “[i]n determining whether a request for declaratory relief

has become moot, ‘the question . . . is whether the facts alleged,

under all the circumstances, show that there is a substantial

controversy, between parties having adverse legal interests, of

sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.’” Conyers v. Reagan, 765 F.2d 1124, 1128

(D.C. Cir. 1985) (quoting Preiser v. Newkirk, 422 U.S. 395, 402

(1975) (emphasis in Preiser)); see also Diffenderfer v. Cent.

Baptist Church of Miami, Florida, Inc., et al., 404 U.S. 412, 414-

15 (1972) (issuing a declaratory judgment that a repealed statute

is unconstitutional and an injunction against its application would

“of course      [be]    inappropriate    now   that    the statute     has been

repealed.”).

     In this case, it is clear that granting the relief sought by

NAHB would require issuance an improper advisory opinion. “[W]hat

makes [a judicial pronouncement] a proper judicial resolution of a

‘case or controversy’ rather than an advisory opinion-is in the

settling   of    some    dispute   which     affects   the   behavior   of   the

defendant towards the plaintiff.” Hewitt v. Helms, 482 U.S. 755,

761 (1987) (emphasis in original).




                                        13
      NAHB itself argues that “entry of judgment is necessary to

ensure that Defendants follow the procedural requirements of the

ESA   and    APA   in    [the   future      SPR   decision]    administrative

proceedings.” Pl.’s Request 7-8; Pl.’s Opp’n 22. Such a declaration

is not immediately necessary, Conyers, 765 F.2d at 1128, nor would

it “affect[] the behavior of the defendant towards the plaintiff.”

Hewitt, 482 U.S. 755. Simply put, NAHB’s request seeks nothing more

than an opinion advising Defendants how they should proceed in

future SPR language-related proceedings. These claims are not

proper for judicial resolution. Theodore Roosevelt Conservation

P’ship, 661 F.3d at 79 (refusing to grant relief for claimed

violations    under     one   policy   by   invalidating      an   unchallenged

subsequent and superceding policy); Natural Res. Def. Council, 680

F.2d at 814-15 (“In effect, [plaintiff] seeks a declaration from

this court that the initial promulgation of the rule was unlawful,

an advisory opinion which federal courts cannot provide.”).

      Furthermore, other judges in this District confronted with

similar facial challenges have held that the withdrawal of a law

eradicated its effects. See Daskalea v. Washington Humane Soc’y,

710 F. Supp. 2d 32, 40 (D.D.C. 2010) (“In the context of a facial

challenge to a statute, which seeks to have the statute ‘declared

unconstitutional and enjoined,’ this prong is generally satisfied

where-as a result of the enactment of the new legislation-the prior

version of the statute is ‘no longer in force’ and there is no


                                       14
allegation that the pre-amendment provisions ‘continue to have any

residual effect.’”) (quoting Nat’l Black Police Ass’n, 108 F.3d at

350); Van Valin v. Gutierrez, 587 F. Supp. 2d 118, 120-21 (D.D.C.

2008) (“The rescission of the Final Rule has ‘completely and

irrevocably eradicated’ the effects of the alleged violations of

the Halibut Act and the APA.”).

      In sum, by withdrawing the SPR Memorandum, Defendants have

indicated that they cannot and will not rely on it in any future

listing determination or related lawsuit. Thus, they have already

eradicated the effects of the alleged violation, and there is

nothing left for the Court to decide. Arizona Pub. Serv. Co. v.

EPA, 211 F.3d 1280, 1296 (D.C. Cir. 2000).

IV.   CONCLUSION

      NAHB brought this suit to strike down a policy and to obtain

a period for notice and comment on any replacement. FWS has now

withdrawn that policy, has stated that it will reassess it, and has

assured NAHB that it will receive its notice and comment period. A

court “can hardly order [the agency] to do something that it has

already done.” Natural Res. Def. Council, 680 F.2d at 814.

      For the reasons set forth above, NAHB’s Request for Entry of

Judgment is denied and Defendants’ Motion to Dismiss is granted.




                                  15
     An Order will issue with this opinion.




                               /s/
December 8, 2011              Gladys Kessler
                              United States District Judge


Copies to: counsel of record via ECF




                               16
