`
`Nos. 20-35412, 20-35414, 20-35415, and 20-35432
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`NORTHERN PLAINS RESOURCE COUNCIL, et al.,
`Plaintiffs/Appellees, v.
`U.S. ARMY CORPS OF ENGINEERS, et al.,
`Defendants/Appellants,
`TC ENERGY CORPORATION, et al.,
`Intervenor-Defendants/Appellants, and
`STATE OF MONTANA,
`Intervenor-Defendants/Appellants.
`
`Appeal from the United States District Court for the
`District of Montana
`No. 4:19-cv-00044 (Hon. Brian Morris)
`
`MONTANA’S RESPONSE TO MOTION TO VACATE
`
`AUSTIN KNUDSEN
`Montana Attorney General
`DAVID M.S. DEWHIRST
`Solicitor General
`JEREMIAH LANGSTON
`Assistant Attorney General
`215 North Sanders
`P.O. Box 201401
`Helena, MT 59620-1401
`406-444-2026
`david.dewhirst@mt.gov
`jeremiah.langston@mt.gov
`
`Attorneys for the State of Montana
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128149, DktEntry: 156, Page 2 of 5
`
`The Federal Appellants have filed a motion to vacate the district
`
`court’s orders below because these appeals are now moot. See ECF 150-
`
`1 at 6. Montana agrees that these cases are moot as a result of the 2021
`
`reissuance of Nationwide Permit 12 (“NWP 12”), see 86 Fed. Reg. 2744
`
`(Jan. 13, 2021), and agrees that, on that basis alone, the district court’s
`
`decisions should be vacated and the cases remanded with instructions to
`
`dismiss.
`
`In the proceedings below, the district court found that the U.S.
`
`Army Corps of Engineers’ (“Corps”) 2017 reissuance of NWP 12 failed to
`
`conduct Endangered Species Act (“ESA”) programmatic consultations.
`
`1-ER-47–59. While the Corps maintains that nationwide ESA § 7 pro-
`
`grammatic consultations for nationwide permits are voluntary, id. at
`
`2848, the Corps did conduct a biological assessment of the proposed reis-
`
`suance:
`
`In the biological assessment prepared by the Corps for this
`rulemaking activity, the Corps presents a substantial amount
`of data to demonstrate the actions it takes to comply with sec-
`tion 7 of the ESA, including the number of formal and infor-
`mal section 7 consultations it conducts with the [U.S. Fish and
`Wildlife Service] and [National Marine Fisheries Service] and
`the number of regional programmatic consultations and other
`tools it has developed with the FWS and NMFS.
`
`
`
`2
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128149, DktEntry: 156, Page 3 of 5
`
`Id. at 2849; see also 82 Fed. Reg. 1860, 1956, 1944 (Jan. 6, 2017) (stating
`
`that § 7 ESA programmatic consultations, including biological assess-
`
`ments, were not necessary in the 2017 reissuance of nationwide permits).
`
`As Montana pointed out in its reply brief, Plaintiffs’ (collectively,
`
`“NPRC”) ESA concerns were exclusive to the Keystone XL Pipeline and
`
`regional at best. See ECF 138 at 8–9 (explaining that NPRC only articu-
`
`lated a concern with the American burring beetle and pallid sturgeon in
`
`specific geographic areas allegedly impacted by Keystone). Thus, the
`
`Corps’ 2021 reissuance of NWP 12—and its attendant regional consulta-
`
`tions—are sufficient to moot these appeals. American Rivers v. National
`
`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.”); see, e.g., Grand Canyon Trust v. U.S. Bu-
`
`reau of Reclamation, 691 F.3d 1008, 1017 (9th Cir. 2012) (“the issuance
`
`of a superseding [Biological Opinion] moots issues on appeal relating to
`
`the preceding BiOp.”). Additionally, when an appeal is mooted, the ap-
`
`propriate posture is to vacate the decision below. See ECF 150-1 at 23–
`
`24 (explaining how the Munsingwear doctrine requires such relief here).
`
`3
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128149, DktEntry: 156, Page 4 of 5
`
`Accordingly, Montana supports the Federal Appellants’ motion to
`
`vacate decisions below.
`
`Respectfully submitted this 28th day of May, 2021.
`
`AUSTIN KNUDSEN
`Montana Attorney General
`215 North Sanders
`P.O. Box 201401
`Helena, MT 59620-1401
`
`By: /s/Jeremiah Langston
`JEREMIAH LANGSTON
`Assistant Attorney General
`
`
`
`
`
`4
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128149, DktEntry: 156, Page 5 of 5
`
`CERTIFICATE OF COMPLIANCE
`
`I hereby certify:
`
`1.
`
`This document complies with the length limitation of Circuit
`
`Rule 27-1(1)(d) because it does not exceed 5,200 words.
`
`2.
`
`This document complies with the typeface requirements of
`
`Federal Rule of Appellate Procedure 32(a)(5) and the type-style require-
`
`ments of Rule 32(a)(6) because it has been prepared in a proportionally
`
`spaced typeface using Microsoft Word in 14-point Century Schoolbook
`
`font.
`
`
`
`/s/Jeremiah Langston
`JEREMIAH LANGSTON
`Counsel for State of Montana
`
`
`
`5
`
`
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