Case: 20-35412, 05/28/2021, ID: 12128202, DktEntry: 157, Page 1 of 5
`
`Fthere are
`
`
`
`
`
`
`
`
`
`Consolidated Case Nos. 20-35412, 20-35414, 20-35415, and 20-35432
`IN THE 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.,
`
`STATE OF MONTANA, and
`
`AMERICAN GAS ASSOCIATION, ET AL.,
`Intervenors-Defendants/Appellants.
`On Appeal from the United States District Court for the District of Montana
`No. 4:19-cv-00044-BMM (Hon. Brian Morris)
`RESPONSE OF APPELLANTS AMERICAN GAS ASSOCIATION,
`AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF OIL PIPE
`LINES, INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA,
`and NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION IN
`SUPPORT OF FEDERAL APPELLANTS’ MOTION TO VACATE
`DECISIONS BELOW
`Elbert Lin
`Deidre G. Duncan
`Karma B. Brown
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue, NW
`Washington, DC 20037
`(202) 955-1500
`elin@HuntonAK.com
`dduncan@HuntonAK.com
`kbbrown@HuntonAK.com
`Counsel for Appellants American Gas
`Association, et al.
`
`Dated: May 28, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`Fthere are
`
`
`
`
`
`
`
`
`
`Consolidated Case Nos. 20-35412, 20-35414, 20-35415, and 20-35432
`IN THE 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.,
`
`STATE OF MONTANA, and
`
`AMERICAN GAS ASSOCIATION, ET AL.,
`Intervenors-Defendants/Appellants.
`On Appeal from the United States District Court for the District of Montana
`No. 4:19-cv-00044-BMM (Hon. Brian Morris)
`RESPONSE OF APPELLANTS AMERICAN GAS ASSOCIATION,
`AMERICAN PETROLEUM INSTITUTE, ASSOCIATION OF OIL PIPE
`LINES, INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA,
`and NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION IN
`SUPPORT OF FEDERAL APPELLANTS’ MOTION TO VACATE
`DECISIONS BELOW
`Elbert Lin
`Deidre G. Duncan
`Karma B. Brown
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue, NW
`Washington, DC 20037
`(202) 955-1500
`elin@HuntonAK.com
`dduncan@HuntonAK.com
`kbbrown@HuntonAK.com
`Counsel for Appellants American Gas
`Association, et al.
`
`Dated: May 28, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128202, DktEntry: 157, Page 2 of 5
`
`Pursuant to “established practice,” this Court should vacate the lower court’s
`
`decisions and orders and remand with instructions to dismiss the case, if it
`
`determines the appeals are moot.1 Arizonans for Official English v. Arizona, 520
`
`U.S. 43, 71 (1997); United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950);
`
`Mayfield v. Dalton, 109 F.3d 1423, 1427 (9th Cir. 1997); Dkt. 150-1. Vacatur is
`
`warranted to “clear[] the path for future relitigation of the issues between the
`
`parties and eliminate[] a judgment, review of which was prevented through
`
`happenstance.” Munsingwear, 340 U.S. at 40. And it will ensure “the rights of all
`
`parties are preserved.” Id. In this circuit, vacatur is generally “automatic” when a
`
`case becomes moot on appeal. Pub. Utils. Comm’n v. FERC, 100 F.3d 1451, 1461
`
`(9th Cir. 1996).
`
`No “exception” to the ordinary rule applies here, id., as the appeals, if moot,
`
`will have been mooted through no action of the NWP 12 Coalition. The Federal
`
`Appellants have proffered numerous reasons for why this action is now moot. Dkt.
`
`150-1. Chief among those is that the U.S. Army Corps of Engineers reissued
`
`Nationwide Permit (“NWP”) 12 on January 13, 2021, and the permit became
`
`effective on March 17, 2021, which also replaced the 2017 version of NWP 12
`
`under review here. See 86 Fed. Reg. 2744 (Jan. 13, 2021). Neither the reissuance
`
`
`1 The NWP 12 Coalition takes no position on whether these appeals are
`moot.
`
`1
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128202, DktEntry: 157, Page 3 of 5
`
`of NWP 12, nor any of the other reasons proffered by the government, are the
`
`result of actions by the NWP 12 Coalition.
`
`A party like the NWP 12 Coalition (and other Intervenor-Appellants) that
`
`“seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of
`
`circumstance, ought not in fairness be forced to acquiesce in the judgment.” U.S.
`
`Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994). Vacatur in
`
`such a situation “eliminat[es] a judgment the loser was stopped from opposing on
`
`direct review.” Arizonans for Official English, 520 U.S. at 71.
`
`Indeed, courts have repeatedly held that when a case is mooted by the
`
`actions of the government, vacatur must be granted to protect the rights of
`
`intervenors—like the NWP 12 Coalition—that did not cause that mootness. See,
`
`e.g., Wyoming v. Zinke, 871 F.3d 1133, 1145 (10th Cir. 2017) (vacating judgment
`
`to preserve rights of intervenors where agency rescission of a permanently
`
`enjoined regulation mooted a lawsuit challenging that regulation); Akiachak Native
`
`Cmty. v. U.S. Dep’t of Interior, 827 F.3d 100, 115 (D.C. Cir. 2016) (granting
`
`intervenor’s request for vacatur where the agency rescinded the challenged rule,
`
`mooting the appeal); Humane Soc’y v. Kempthorne, 527 F.3d 181, 187 (D.C. Cir.
`
`2008) (vacating judgment and injunction to preserve rights of intervenor where
`
`challenge became moot due to subsequent agency action); Wyoming v. U.S. Dep’t
`
`of Agric., 414 F.3d 1207, 1213, 1213 n.6 (10th Cir. 2005) (vacating judgment to
`
`2
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128202, DktEntry: 157, Page 4 of 5
`
`preserve rights of intervenors where challenge to agency regulation became moot
`
`when agency promulgated a new regulation). See also Indigenous Envtl. Network
`
`v. U.S. Dep’t of State, No. 18-36068, 2019 WL 2542756, at *1 (9th Cir. June 6,
`
`2019) (granting intervenors’ motion to vacate the district court’s judgments when
`
`appeals were mooted by issuance of new permit).
`
`Under these circumstances, if this Court finds the appeals to be moot, it
`
`should also grant the Federal Appellants’ motion to vacate the District Court’s
`
`orders of April 15, 2020 and May 11, 2020, to preserve the rights of the NWP 12
`
`Coalition.
`
`
`Date: May 28, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Elbert Lin
`
`Elbert Lin
`Deidre G. Duncan
`Karma B. Brown
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue, NW
`Washington, DC 20037
`(202) 955-1500
`elin@HuntonAK.com
`dduncan@HuntonAK.com
`kbbrown@HuntonAK.com
`
`Counsel for Appellants American Gas
`Association, American Petroleum
`Institute, Association of Oil Pipe Lines,
`Interstate Natural Gas Association of
`America, and National Rural Electric
`Cooperative Association
`
`3
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128202, DktEntry: 157, Page 5 of 5
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`9th Cir. Case Number(s): 20-35412, 20-35414, 20-35415, and 20-35432
`
`
`I am the attorney or self-represented party.
`
`This response contains 587 words, excluding the items exempted by Fed.
`
`R. App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.
`
`32(a)(5) and (6).
`
`I certify that this brief (select only one):
`
`[X] complies with the word limit of Cir. R. 32-1.
`[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
`[ ] is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5),
`Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
`[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
`[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select
`only one):
`[ ] it is a joint brief submitted by separately represented parties;
`[ ] a party or parties are filing a single brief in response to multiple briefs; or
`[ ] a party or parties are filing a single brief in response to a longer joint brief.
`[ ] complies with the length limit designated by court order dated _____________.
`[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
`
`
`Signature s/ Elbert Lin
`
`
`
`
` Date May 28, 2021
`
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
