`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`AUG 11 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 20-35412
`
`
`D.C. No. 4:19-cv-00044-BMM
`District of Montana,
`Great Falls
`
`
`ORDER
`
`
`
`
`No. 20-35414
`
`
`D.C. No. 4:19-cv-00044-BMM
`
`
`
`
`
`
`
`
`
`
` Plaintiffs-Appellees,
`
`
`
`
`
`
`
` Defendants-Appellants,
`
`NORTHERN PLAINS RESOURCE
`COUNCIL; et al.,
`
`
`
` v.
`
`
`UNITED STATES ARMY CORPS OF
`ENGINEERS; SCOTT A. SPELLMON, In
`his official capacity and U.S. Army Chief of
`Engineers and Commanding General of the
`U.S. Army Corps of Engineers,
`
`
`
` and
`
`
`TRANSCANADA KEYSTONE PIPELINE,
`LP; et al.,
`
`
`
`
`
`
`
`
`
`
`
`Intervenor-Defendants.
`
`
`
` Plaintiffs-Appellees,
`
`
`
`
`
`
`
`NORTHERN PLAINS RESOURCE
`COUNCIL; et al.,
`
`
`
` v.
`
`
`UNITED STATES ARMY CORPS OF
`ENGINEERS; SCOTT A. SPELLMON, In
`his official capacity and U.S. Army Chief of
`Engineers and Commanding General of the
`U.S. Army Corps of Engineers,
`
`SC/MOATT
`
`
`
`
`
`
`
`Case: 20-35412, 08/11/2021, ID: 12198404, DktEntry: 164, Page 2 of 4
`
`
`
`
`
`
`
` Defendants,
`
`
`
`
`
`
`
`
`
`Intervenor-Defendants,
`
`
`
`
`
`TRANSCANADA KEYSTONE PIPELINE,
`LP; et al.,
`
`
`
` and
`
`
`AMERICAN GAS ASSOCIATION; et al.,
`
`
`
`
`Intervenor-Defendants-
`
` Appellants.
`
`
`
`
`
`
`No. 20-35415
`
`
`D.C. No. 4:19-cv-00044-BMM
`
`
`
`
`
`
`
`
`
`
` Plaintiffs-Appellees,
`
`NORTHERN PLAINS RESOURCE
`COUNCIL; et al.,
`
`
`
` v.
`
`
`UNITED STATES ARMY CORPS OF
`ENGINEERS; SCOTT A. SPELLMON, In
`his official capacity and U.S. Army Chief of
`Engineers and Commanding General of the
`U.S. Army Corps of Engineers,
`
`
`
`
`STATE OF MONTANA; et al.,
`
`
`
` and
`
`
`TRANSCANADA KEYSTONE PIPELINE,
`LP; TC ENERGY CORPORATION,
`
`
`
`
`
`
`
`
`
`
`
`
`
` Defendants,
`
`
`
`Intervenor-Defendants,
`
`SC/MOATT
`
`2
`
`
`
`
`
`Case: 20-35412, 08/11/2021, ID: 12198404, DktEntry: 164, Page 3 of 4
`
`Intervenor-Defendants-
`
` Appellants.
`
`
`
`
`
`
`
`
`
`
`
`
`
` Plaintiffs-Appellees,
`
`
`
`
`No. 20-35432
`
`
`D.C. No. 4:19-cv-00044-BMM
`
`
`
`
`NORTHERN PLAINS RESOURCE
`COUNCIL; et al.,
`
`
`
` v.
`
`
`UNITED STATES ARMY CORPS OF
`ENGINEERS; SCOTT A. SPELLMON, In
`his official capacity and U.S. Army Chief of
`Engineers and Commanding General of the
`U.S. Army Corps of Engineers,
`
`
`
`
`TRANSCANADA KEYSTONE PIPELINE,
`LP; et al.,
`
`
`
` and
`
`
`STATE OF MONTANA,
`
`
`
`
`
`
`
`
`
`
` Defendants,
`
`
`
`
`
`
`
`
`
`Intervenor-Defendants,
`
`Intervenor-Defendant-
`
` Appellant.
`
`
`Before: SCHROEDER, TASHIMA, and HURWITZ, Circuit Judges.
`
`
`
`Federal Appellants’ motion to vacate the decisions below (Docket Entry No.
`
`150 in 20-35412) is granted in part. The U.S. Army Corps of Engineers’ issuance
`
`of a new nationwide permit supersedes the agency action that is the subject of
`
`SC/MOATT
`
`3
`
`
`
`
`
`Case: 20-35412, 08/11/2021, ID: 12198404, DktEntry: 164, Page 4 of 4
`
`these appeals. Therefore, these interlocutory appeals and the underlying claim that
`
`is the subject of these appeals are moot. See American Rivers v. Nat’l Marine
`
`Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir.1997) (“If an event occurs that
`
`prevents the court from granting effective relief, the claim is moot and must be
`
`dismissed.”). These appeals are dismissed for lack of jurisdiction, and we remand
`
`with instructions to dismiss the underlying claim. However, we take no position
`
`on whether the underlying cases are moot in their entirety and leave that
`
`determination to the district court in the first instance.
`
`
`
`We decline to vacate any of the district court’s decisions. On remand, the
`
`district court shall consider whether appellants are entitled to vacatur. See Dilley v.
`
`Gunn, 64 F.3d 1365, 1370-71 (9th Cir. 1995) (explaining that vacatur is not
`
`automatic when an appellant’s own action moots the appeal).
`
`
`
`
`
`All pending motions are denied as moot.
`
`DISMISSED AND REMANDED.
`
`SC/MOATT
`
`4
`
`
`
`
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