     Case: 11-30491     Document: 00511864041         Page: 1     Date Filed: 05/22/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           May 22, 2012

                                       No. 11-30491                        Lyle W. Cayce
                                                                                Clerk

ENSCO OFFSHORE COMPANY; ATP OIL & GAS CORPORATION,

                                                  Plaintiffs-Appellees
v.

KENNETH LEE SALAZAR; ET AL,

                                                  Defendants

SIERRA CLUB; FLORIDA WILDLIFE FEDERATION; CENTER FOR
BIOLOGICAL DIVERSITY,

                                                  Intervenor Defendants-Appellants



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-1941


Before REAVLEY, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
        The intervenor-defendants in this case appeal following the district court’s
grant of injunctive and declaratory relief to the plaintiffs ordering the
Government to act upon specific drilling permit applications within thirty days.


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-30491

After a settlement agreement between the plaintiffs and the Government,
however, the district court vacated the injunction and incorporated the
settlement agreement into the final judgment. The intervenors now argue that
the case has become moot because of the settlement agreement, and they move
for vacatur of the district court judgment pursuant to Goldin v. Bartholow, 166
F.3d 710 (5th Cir. 1999). Because we conclude that there is no live case or
controversy before us, we DISMISS the appeal.
      This case began following the disaster on the Deepwater Horizon drilling
rig in the Gulf of Mexico.      The plaintiffs sued under the Administrative
Procedures Act (“APA”), 5 U.S.C. §§ 701–06, and the Outer Continental Shelf
Lands Act (“OCSLA”), 43 U.S.C. §§ 1331 et seq., to challenge two moratoria
instituted by the Government on deepwater drilling in the wake of the disaster.
The district court allowed several environmental organizations to intervene as
defendants aligned with the Government. After the moratoria were lifted, the
plaintiffs amended their complaint to challenge the Government’s failure to act
on nine specific drilling permit applications.
      On cross-motions for summary judgment, the district court held that the
APA and OCSLA imposed on the Government a non-discretionary duty to act on
the permit applications within a reasonable time. The court declared that the
Government’s delay in acting on the permit applications, including three
applications that had been granted by the time of summary judgment, had been
unlawful. The district court also enjoined the Government to act on the six
remaining applications within thirty days.
      The district court’s judgment, which was interlocutory in nature, was
certified as final pursuant to FED. R. CIV. P. 54(b). The district court then stayed
the injunction, however, upon motion by the plaintiffs and the Government due
to settlement negotiations.       The intervenors filed a notice of appeal.
Subsequently, the Government and the plaintiffs reached a settlement

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                                       No. 11-30491

agreement and consent decree providing inter alia that the Government would
act on the remaining permit applications within thirty days. The Government
and the plaintiffs jointly moved the district court to vacate its prior injunction
but not the declaratory relief. The district court granted the motion and entered
an amended final judgment.
      The intervenors argue that the case has become moot by virtue of the
settlement agreement, and that because the intervenors played no part in
mooting the case, we must vacate the district court’s judgment. See, generally,
Goldin, 166 F.3d at 718. The plaintiffs argue that the intervenors lack standing
to appeal, however, because they are not harmed by the district court’s judgment
and have suffered no injury.1 We agree with the plaintiffs.
      Our jurisdiction under Article III of the Constitution is limited to “cases”
and “controversies.” U.S. CONST. Art. III, § 2, cl. 1; see City of Los Angeles v.
Lyons, 461 U.S. 95, 101, 103 S. Ct. 1660, 1665 (1983).                  To invoke this
jurisdiction, an intervenor seeking to appeal is required to show that it has
constitutional standing. United States v. Texas, 158 F.3d 299, 303 (5th Cir.
1998). An intervenor must show (1) an injury in fact, (2) that is traceable to the
challenged action, and (3) that is redressable by a favorable decision. Id.; see
also Sierra Club v. Babbitt, 995 F.2d 571, 574 (5th Cir. 1993) (“A case or
controversy does not exist unless the person who asks the court for a decision
has ‘standing’ to do so, the elements of which are injury, causation, and
redressability.”).
      “Where standing to appeal is at issue, appellants must demonstrate some
injury from the judgment below.” Sierra Club, 995 F.2d at 575 (emphasis in
original). Indeed, the requirement of a clear injury is fundamental for an
appellant to prosecute an appeal. See Save Our Community v. U.S. Envtl. Prot.


      1
          The Government is not participating in this appeal.

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Agency, 971 F.2d 1155, 1160 n.9 (5th Cir. 1992) (“In order to have standing to
appeal, a party must be aggrieved by the judicial action from which it appeals.”);
Machella v. Cardenas, 659 F.2d 650, 652 (5th Cir. 1981) (“Only the party
aggrieved by a district court ruling has standing to appeal.”). The intervenors
here base their claim of aggrievement on a purported requirement from the
judgment that the Government act upon new drilling permit applications within
thirty days, which they contend hampers the Secretary of the Interior’s ability
to protect the environment and thus causes them harm. This argument is
unavailing.
      The injunctive portion of the district court’s judgment has already been
vacated.      The settlement agreement entered by the plaintiffs and the
Government calls for action within thirty days only on six specific unapproved
permit applications at issue in this litigation. The district court’s final judgment
expressly incorporated by reference the settlement agreement, which provides
that the thirty-day time frame applies “only to the six unapproved Permit
Applications at issue in this litigation and not to any other permit applications.”
(Emphasis added). Thus, nothing in the judgment as amended requires the
Government to act on all permit applications within thirty days, and indeed the
Government disclaimed any such requirement in the settlement agreement. The
intervenors do not argue that review of the six referenced permit applications
have caused or will cause harm to their members.
      Moreover, to the extent that the amended judgment provides declaratory
relief, the intervenors do not argue that the declaration has caused them harm.
As presently constituted, the amended judgment does not prevent the
Government or the intervenors from arguing that a thirty-day time frame would
be unreasonable in a future case, nor does it bar the intervenors in future
litigation from arguing that the Government’s review process interferes with
their members’ environmental interests.         The intervenors here, like the

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intervenors in our Sierra Club decision, fail to show a live case or controversy,
and the appeal must be dismissed. See Sierra Club, 995 F.2d at 575 (dismissing
appeal by intervenor-appellants where district court’s judgment ordered nothing
of the appellants and would not affect appellants in future litigation).
      Motion for vacatur denied. Motion to dismiss granted. DISMISSED.




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