                                                                           FILED
                   UNITED STATES COURT OF APPEALS                          DEC 31 2015

                                                                     MOLLY C. DWYER, CLERK
                           FOR THE NINTH CIRCUIT                       U.S. COURT OF APPEALS




ALASKA WILDERNESS LEAGUE; et                   No. 15-35559
al.,
                                               D.C. No. 3:15-cv-00067-SLG
             Plaintiffs - Appellants,          District of Alaska,
                                               Anchorage
 v.

SALLY JEWELL, Secretary of the                 ORDER
Interior; et al.,

             Defendants - Appellees,

  And

ALASKA OIL AND GAS
ASSOCIATION,

             Intervenor-Defendant -
Appellee.


Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

      Alaska Wilderness League and other environmental organizations

(“Appellants”) appeal the district court’s order denying summary judgment on

claims they brought pursuant to the Administrative Procedure Act (“APA”), 5

U.S.C. § 701 et seq., and granting summary judgment on these claims in favor of

the United States Fish and Wildlife Service (“USFWS”) and intervenor-defendant

Alaska Oil and Gas Association (“AOGA”). In light of certain events that
occurred after this appeal was filed, we ordered the parties to show cause why the

appeal should not be dismissed as moot. Appellants, USFWS, and AOGA each

filed a letter brief arguing against mootness, and reiterated this position at oral

argument. Having thoroughly considered the question of mootness, we disagree

with the parties’ view. We dismiss this appeal as moot, vacate the judgment and

order of the district court, and direct the district court to dismiss this action upon

remand.

      Appellants challenge an incidental take regulation (“Regulation”)

promulgated by USFWS pursuant to the Marine Mammal Protection Act of 1972,

(“MMPA”), 16 U.S.C. § 1361 et seq. The Regulation authorizes the “take” of

polar bears and Pacific walruses incidental to oil and gas exploration activity in a

240,000-square-kilometer area of the Chukchi Sea, off the north coast of Alaska.

Marine Mammals; Incidental Take During Specified Activities, 78 Fed. Reg.

35,364, 35,364–66 (June 12, 2013).1 This area includes what USFWS has

designated the Hanna Shoal Walrus Use Area (“HSWUA”), a 24,600-square-



      1
        “Take” includes “any act of ‘torment’ or ‘annoyance’ that ‘has the potential
to injure . . . or . . . disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering.’” Ctr. for
Biological Diversity v. Salazar, 695 F.3d 893, 898–99 (9th Cir. 2012) (alterations
in original) (quoting 16 U.S.C. § 1362(13), (18)(A)(i)-(ii)).

                                            2
kilometer area that the agency found has “long been recognized as a critical

foraging area for the Pacific walrus in summer and fall.” Id. at 35,371. USFWS

authorized incidental take based in part on the finding that the total take of Pacific

walruses in the regulated region would have a “negligible impact” on the species.

Id. at 35,403–04; see 16 U.S.C. § 1371(a)(5)(A)(i)(I). Appellants contend USFWS

violated the MMPA by predicating its negligible impact finding on undefined

future mitigation measures in the HSWUA. Appellants also contend USFWS’s

environmental assessment, which found that the Regulation would have no

significant impact on the environment, violated the National Environmental Policy

Act (“NEPA”), 42 U.S.C. § 4321 et seq., because it depended upon a “short,

incomplete, and bare list of possible generic mitigation categories for part of

Hanna Shoal.”

      At the time this appeal was filed, Shell was the only firm conducting oil

exploration activities in or near the HSWUA. It was also the only firm with an

active letter of authorization (“LOA”) from USFWS, the means specified in the

MMPA’s implementing regulations for obtaining authorization to conduct

activities pursuant to the incidental take regulation. See 50 C.F.R. § 18.27; Ctr. for

Biological Diversity v. Salazar, 695 F.3d 893, 899 (9th Cir. 2012). On September

28, 2015, Shell announced that it would “cease further exploration activity in


                                           3
offshore Alaska for the foreseeable future.” Press Release, Shell Global, Shell

Updates on Alaska Exploration (Sept. 28, 2015), http://www.shell.com/global/

aboutshell/media/news-and-media-releases/2015/shell-updates-on-alaska

-exploration.html. Shell stated that, although it had found some indications of oil

and gas, these were not sufficient to justify ongoing exploration because of “the

high costs associated with the project, and the challenging and unpredictable

federal regulatory environment in offshore Alaska.” Id. USFWS represents that

there has been “reported low industry interest” in any further activity.2 The parties

conceded in their letter briefs and at argument that they are aware of no impending

applications to conduct oil and gas exploration activities in the regulated region,

which are a necessary antecedent for any further authorizations. The Regulation

will expire of its own force on June 12, 2018. 78 Fed. Reg. at 35,364.




      2
         In addition, on October 16, 2015, the United States Department of
the Interior canceled auctions for drilling rights in nearby regions offshore
of Alaska, and it denied requests by Shell and Statoil to extend offshore drilling
leases. Press Release, U.S. Dep’t of the Interior, Interior Department Cancels
Arctic Offshore Lease Sales (Oct. 16, 2015), https://www.doi.gov/pressreleases/
interior-department-cancels-arctic-offshore-lease-sales. On November 17, 2015,
Statoil announced that its leases in the Chukchi Sea were “no longer considered
competitive within [its] global portfolio,” and that it would exit 66 leases of which
it was a stakeholder or operator. Press Release, Statoil, Statoil Exits Alaska (Nov.
17, 2015), http://www.statoil.com/en/NewsAndMedia/News/2015/Pages/
17Nov_Alaska.aspx.

                                           4
      “[W]e bear an independent obligation to assure ourselves that jurisdiction is

proper before proceeding to the merits.” Golden v. Cal. Emergency Physicians

Med. Grp., 782 F.3d 1083, 1086 (9th Cir. 2015) (quoting Plains Commerce Bank

v. Long Family Land & Cattle Co., 554 U.S. 316, 324 (2008)). We lack

jurisdiction “over claims that have been rendered moot because the issues

presented are no longer live or because the parties no longer possess a legally

cognizable interest in the outcome.” Jones v. Williams, 791 F.3d 1023, 1031 (9th

Cir. 2015) (citations and internal quotation marks omitted). The parties’ agreement

that a case is not moot “weighs in favor of our jurisdiction,” but does not relieve us

of our “independent duty to consider sua sponte whether a case is moot.” Hunt v.

Imperial Merch. Servs., Inc., 560 F.3d 1137, 1141 (9th Cir. 2009) (citation and

internal quotation marks omitted).

      Appellants brought this action based on their members’ aesthetic,

conservationist, scientific, and recreational interests in Pacific walruses. See Lujan

v. Defenders of Wildlife, 504 U.S. 555, 562–63 (1992). The relief Appellants

request, vacatur of the Regulation, is related to these interests only in so far as it

reduces the likelihood that Pacific walruses will be harmed. Appellants cannot

seek to set aside agency action based on their “nonconcrete interest in the proper




                                            5
administration of the laws.” See Summers v. Earth Island Inst., 555 U.S. 488, 497

(2009) (citation and internal quotation marks omitted).3

      Since this appeal was filed, dramatic changes in circumstances have

rendered remote and speculative the possibility that any oil and gas exploration

activity will occur in or near the HSWUA in the less than three years before the

Regulation expires. Shell has withdrawn from the region; no other firm has

expressed interest in entering; and the plummeting price of oil, of which we may

take judicial notice, has rendered economically unpalatable for the foreseeable

future the substantial capital investment necessary for a firm to engage in oil and

gas exploration in the regulated region.4 Even if an optimistic firm wished to do

so, the Regulation does not by itself authorize any activity that could harm or

disturb walruses. Under the “two-step process” established by the MMPA’s

implementing regulations, the firm would first need to obtain an LOA from


      3
        In their Complaint, Appellants asserted procedural injuries, but stated these
were “connected to Plaintiffs’ substantive conservation, recreational, scientific, and
aesthetic interests.” Our law makes clear that “deprivation of procedural rights,
alone, cannot confer Article III standing.” Wilderness Soc., Inc. v. Rey, 622 F.3d
1251, 1258 (9th Cir. 2010) (citing Summers, 555 U.S. at 496–97).
      4
        Shell’s September 28, 2015 announcement noted that it expected to sustain
financial losses as a result of its withdrawal from the region. Press Release, Shell
Global, supra. Shell stated that the balance sheet carrying value of its Alaska
position is “approximately $3.0 billion, with approximately a further $1.1 billion of
future contractual commitments.” Id.

                                          6
USFWS. Salazar, 695 F.3d at 899. If it did not, it would be subject to substantial

civil and criminal penalties. Id. Shell’s LOA has expired, and the parties represent

that they know of no firm in the region with an active LOA.

      The threat of harm on which foundation this action rests, the USFWS-

countenanced disturbance of walruses by oil and gas firms, has melted away like so

much Chukchi ice. The parties’ theory that this threat may yet resolidify before the

Regulation expires is premised “upon the occurrence of future events now

unforeseeable.” Foster v. Carson, 347 F.3d 742, 748 (9th Cir. 2003) (citation and

internal quotation marks omitted). We have consistently held that such

“speculative contingencies afford no basis for adjudication of the substantive

issues presented.” Id.

      The parties’ arguments to the contrary are unavailing. Appellants contend

that our opinion in Center for Biological Diversity v. Kempthorne, 588 F.3d 701

(9th Cir. 2009), authorizes facial challenges to MMPA incidental take regulations,

without reference to any particular LOA issued under a regulation. More broadly,

the parties argue that our Circuit has not found to be moot facial challenges to

regulatory frameworks under which allegedly injurious activities may be

authorized, even if a given activity has ceased and no such activity is ongoing

during the pendency of the appeal. See, e.g., Washington v. Daley, 173 F.3d 1158,


                                          7
1164–65 (9th Cir. 1999). The parties contend such cases are justiciable, either as a

general matter, or under the “capable of repetition, yet evading review” exception

to mootness doctrine.

       Cases in this posture may not necessarily be moot, but it does not follow that

they cannot be. Our decisions recognize that where a regulatory framework like

the MMPA allows an agency to authorize activities, and the agency has done so

and is likely to continue to do so, strictly requiring a plaintiff to limit her facial

case to harms associated with some discrete and transitory authorization would be

neither expeditious nor constitutionally compelled. See id. at 1165. This does not

mean the plaintiff can challenge the framework in vacuo, based on nothing more

than the “speculative contingenc[y]” that some future authorization might be made.

Foster, 347 F.3d at 748; cf. Summers, 555 U.S. at 497. Likewise, the “capable of

repetition, yet evading review” exception requires “a reasonable expectation that

the same complaining party will be subject to the same action again.” FEC v. Wis.

Right to Life, Inc., 551 U.S. 449, 462 (2007) (citation and internal quotation marks

omitted).

       We conclude that these standards are no longer satisfied here. While they

may have been at the time this action commenced, circumstances have changed

dramatically, “forestall[ing] any occasion for meaningful relief.” Cantrell v. City


                                             8
of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001) (citation and internal quotation

marks omitted).5 This conclusion follows from an unusual confluence of

regulatory structure and operative facts. The Regulation has an expiration date in

the near future. The only firm in a position to operate under it near the HSWUA

has withdrawn. No firm appears poised to take its place. Offshore oil exploration

in the Arctic is a daunting, costly activity that is not economically feasible when, as

now, the price of oil has plummeted to new lows. The LOA process, though not

subject to the requirements of notice and comment, imposes an additional, delaying

step between the Regulation’s generalized authorization of incidental take and the

particularized authorization of any activity that could disturb or harm Pacific

walruses. Against this backdrop, the parties’ theory that circumstances may yet

radically change while the Regulation remains in force is simply too “remote and

speculative” to rescue from mootness Appellants’ claims for injunctive and

declaratory relief under the APA. See Feldman v. Bomar, 518 F.3d 637, 643 (9th

Cir. 2008) (citation omitted).

      5
         Nor does the voluntary cessation doctrine save Appellants’ claims. See
Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013). USFWS has not
voluntarily ceased any activity, and Shell, though a member of AOGA, is not a
party to this case. Even if the voluntary cessation doctrine applies on these facts, it
is not a basis on which to reach the merits of Appellants’ claims, as we “conclude
the case is moot because the challenged conduct cannot reasonably be expected to
recur” during the period the Regulation remains in effect. See id. at 729.

                                           9
       We are mindful that the parties’ respective interests in this litigation extend

beyond this particular dispute, and it is only natural that, having expended time and

resources in this litigation, they would like to see a final judicial resolution.

Appellants and AOGA regularly appear in federal court to advocate the positions

of their members on similar issues, and USFWS regularly defends its actions

against similar MMPA and NEPA challenges. All involved might find some value

in a binding merits ruling, whatever the outcome, that they might better understand

the legal landscape, or seascape, they inhabit. But litigants cannot create federal

jurisdiction by consent alone. “No matter how vehemently the parties continue to

dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot

if the dispute is no longer embedded in any actual controversy about the plaintiffs’

particular legal rights.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013)

(citation and internal quotation marks omitted). Because changed conditions have

mooted the underlying controversy, we cannot issue the advisory opinion the

parties seek. See United States v. Yakima Tribal Court, 806 F.2d 853, 857 (9th Cir.

1986).

       “When a civil case becomes moot pending appellate adjudication, ‘[t]he

established practice . . . in the federal system . . . is to reverse or vacate the

judgment below and remand with a direction to dismiss.’” Arizonans for Official


                                            10
English v. Arizona, 520 U.S. 43, 71 (1997) (alterations in original) (quoting United

States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). “Vacatur is in order when

mootness occurs through happenstance—circumstances not attributable to the

parties . . . .” Id. (citation omitted). We find that vacatur is appropriate under the

circumstances here presented, and therefore vacate the judgment and order of the

district court, and direct the district court on remand to dismiss this action. See 28

U.S.C. § 2106.

      This appeal is dismissed as moot, and the judgment and order of the district

court are vacated. The district court shall dismiss this action upon remand.

      IT IS SO ORDERED.




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