                                                                               FILED
                                                                   United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                       Tenth Circuit

                             FOR THE TENTH CIRCUIT                         June 17, 2016
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
WILDEARTH GUARDIANS,

      Plaintiff - Appellee,

v.                                                 Nos. 15-1186 and 15-1236
                                                 (D.C. No. 1:13-CV-00518-RBJ)
UNITED STATES OFFICE OF                                    (D. Colo.)
SURFACE MINING RECLAMATION
AND ENFORCEMENT; AL KLEIN, in
his official capacity as Western Regional
Director of the Office of Surface Mining,
Reclamation and Enforcement, Denver,
Colorado; S.M.R. JEWELL, in her official
capacity as U.S. Secretary of the Interior,

      Defendants,

v.

COLOWYO COAL COMPANY, L.P.,

      Intervenor Defendant - Appellant,

and

TRAPPER MINING, INC.,

      Intervenor Defendant - Appellant.
                       _________________________________

                              ORDER AND JUDGMENT*


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
                        _________________________________

Before McHUGH, EBEL, and MORITZ, Circuit Judges.
                  _________________________________

      WildEarth Guardians brought suit against the United States Office of Surface

Mining Reclamation and Enforcement (OSM), challenging OSM’s approval of

certain mining plan modifications for mines owned by intervenor-defendants

Colowyo Coal Company, L.P., and Trapper Mining, Inc. Specifically, WildEarth

alleged that OSM violated the National Environmental Protection Act (NEPA) by

failing to involve the public in its approval processes and by failing to take a hard

look at the modifications’ environmental impacts. The district court agreed and

remanded the matters to OSM with directions to comply with NEPA.1 Colowyo and

Trapper initiated separate appeals, which we later consolidated.

      While the appeals were pending, however, OSM completed its remedial NEPA

analyses and reapproved both mining plan modifications. WildEarth thus argues the

appeals are now moot, depriving this court of subject-matter jurisdiction. See Rio

Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109-10 (10th Cir.

2010). Colowyo and Trapper disagree. They allege that OSM’s subsequent approvals

reset the statute of limitations for third-party attacks, and that OSM imposed

collateral estoppel. It may be cited, however, for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         The district court initially took no remedial action regarding the Trapper
Mine in light of the court’s mistaken belief that Trapper already mined all of the coal
covered under its mining plan modification. Trapper later corrected this
misunderstanding, and the district court subsequently approved the parties’ joint
proposal indicating that OSM would conduct a remedial NEPA analysis for the
Trapper Mine as well.

                                            2
conditions during the reapproval processes that adversely affect their lease rights and

require them to fund downstream studies. Thus, they argue they suffer a “concrete

ongoing injury” as a result of the reapproved modifications and that the appeals are,

therefore, not moot. Id. at 1112.

      But the only issue before us in these appeals is whether OSM violated the

prescribed NEPA procedure in approving the now-superseded mining plan

modifications. And “any determination we might make as to the procedural

foundations of the old [mining plan modification approvals]” would have no real-

world effect “because the analytical and procedural aspects of the [old approvals]

have been superseded by the new analysis and procedure underlying the new

[approvals].” Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220, 1230 (10th Cir.

2012) (citing Rio Grande Silvery Minnow, 601 F.3d at 1112); see Wyoming v. U.S.

Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (concluding that appeal was

moot because (1) agency promulgated a rule superseding challenged rule and thus the

“portions of the [original rule] that were substantively challenged by [the appellant]

no longer exist[ed]”; and (2) original rule’s alleged procedural deficiencies were

“irrelevant because the replacement rule was promulgated in a new and separate

rulemaking process”).

      Nor do these appeals fall into the “capable of repetition, yet evading review

exception” to our general mootness rule. U.S. Dep’t of Interior, 674 F.3d at 1229.

Under that “narrow” exception, see Jordan v. Sosa, 654 F.3d 1012, 1034-35 (10th

Cir. 2011), we may exercise jurisdiction over a seemingly moot appeal if the party


                                           3
asserting that the exception applies establishes that “(1) the challenged action was in

its duration too short to be fully litigated prior to its cessation or expiration, and

(2) there [is] a reasonable expectation that the same complaining party would be

subjected to the same action again,” Murphy v. Hunt, 455 U.S. 478, 482 (1982)

(emphasis added) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)); see

Jordan, 654 F.3d at 1035.

       Here, Colowyo and Trapper fail to establish even the first of these two

requirements. Specifically, they fail to demonstrate that the nature of their

challenge—i.e., an appeal during the pendency of a remedial NEPA review—is

“necessarily of short duration,” U.S. Dep’t of Interior, 674 F.3d at 1229 (quoting

Jordan, 654 F.3d at 1036), or that it is one that “by its very nature could not, or

probably would not be able to be adjudicated while fully ‘live,’” id. (quoting Dow

Chem. Co. v. EPA, 605 F.2d 673, 678 n.12 (3d Cir. 1979)). Although OSM

completed both of its remedial NEPA analyses rather expediently here, there is

nothing inherent about NEPA analyses that “makes them necessarily of short

duration.” Id. We thus decline to apply this narrow exception here.

       Because we lack subject-matter jurisdiction over these appeals, Rio Grande

Silvery Minnow, 601 F.3d at 1109; U.S. Dep’t of Agric., 414 F.3d at 1212, we dismiss

both appeals as moot and vacate the district court’s May 8, 2015 Order (Doc. 78),

and its May 8, 2015 Final Judgment (Doc. 79). See Alvarez v. Smith, 558 U.S. 87, 94

(2009) (explaining that “we normally . . . vacate the lower court judgment in a moot

case because doing so ‘clears the path for future relitigation of the issues between the


                                             4
parties’” (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950))); Dine

Citizens Against Ruining Our Env’t v. U.S. Office of Surface Mining Reclamation &

Enf’t, No. 15-1126, 2016 WL 1237955, at *1 (10th Cir. Mar. 20, 2016) (unpublished)

(vacating judgment below after dismissing appeal as moot when OSM conducted

remedial NEPA analysis and reapproved mine’s permit revision while appeal was

pending).


                                          Entered for the Court


                                          Nancy L. Moritz
                                          Circuit Judge




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