Feldman v. Bomar, case no. 06-55675 (9th Cir. Jan. 10, 2008) caught my eye because of its local angle (full disclosure: I may also know one of the appellants; I know a fellow Boat School-er named Bob Puddicombe, but I have no idea if it’s the same guy). The case involves a challenge to an environmental action regarding Santa Cruz Island, one of the five islands in the Channel Islands chain just off our coast here in Ventura (links to sites about the Channel Islands National Park, one of the appellees, are here, here and here; the link to Santa Cruz Island is from one of these sites).
As luck would have it, the case also provides an appellate lesson on mootness.
The national park and other appellees had approved a plan to replenish the native population of foxes on the island by killing off the non-native feral pig population through a concentrated hunt. Appellants sued to prevent the kill, claiming the pig population should be physically removed from the island or eradicated by more humanitarian means, such as sterilization. Appellants lost on summary judgment in the trial court. Unfortunately (for both the appellants and the pigs), by the time the appeal could be heard, the kill was complete. Appellees moved to dismiss on mootness grounds, and the court grants the motion.
Though a Court of Appeals may exercise jurisdiction over a case rendered moot with respect to injunctive relief where declaratory relief is sought, even then it may do so
only when the challenged government activity is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties. [Citation.]
Reviewing past exercises of jurisdiction in such circumstances, the court finds that
[t]he common thread in these cases is that “the violation complained of may have caused continuing harm and . . . the court can still act to remedy such harm by limiting its future adverse effects. [Citation.]
Since the pigs had already been killed, “Appellants have suffered whatever harm could conceivably result from the challenged agency action.”
Appellant’s arguments that there may still be a live pig left on the island and that the court could still reverse or mitigate the damage fail. The former relies on speculation. The latter ignores that a continuing ability to reduce or reverse damage refers to secondary effects. Here, the only alleged harm was the purportedly inhumane eradication of the pig population.
Likewise lacking is appellants’ argument that dismissing the appeal will encourage government actors to fulfill their illegal plans quickly, before the courts can stop them. Although sympathizing with this argument somewhat in the abstract, the court finds it has no application to this case. The appellants waited two years to file suit, had an opportunity to file for temporary restraining order and preliminary injunction (the denial of which had been affirmed in a previous appeal), and the appellees had moved quickly on the eradication because the pigs’ presence was an environmental hazard, not because they were attempting to evade review.
Finally, even though the court may assert jurisdiction in a case “capable of repetition, yet evading review,” that doctrine has no application here because the appellants challenged a single, non-repetitive plan for the pig eradication.
Thus, even though the burden on appellees to establish mootness is “a heavy one,” the appellees here carry it off by proffering proof that the pigs are all gone.