`
`Consolidated Case Nos. 20-35412, 20-35414, 20-35415, and 20-35432
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`
`
`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,
`
`TRANSCANADA KEYSTONE PIPELINE, LP, et al.,
`Intervenor-Defendants-Appellants,
`
`AMERICAN GAS ASSOCIATION, et al.,
`Intervenor-Defendants-Appellants,
`
`and
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`STATE OF MONTANA,
`Intervenor-Defendant-Appellant.
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`
`
`
`
`On Appeal from the U.S. District Court for the District of Montana
`No. 4:19-cv-00044-BMM
`
`
`
`
`
`
`PLAINTIFFS’ RESPONSE TO MOTION
`TO VACATE DECISIONS BELOW
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`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 2 of 27
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`DOUG HAYES
`ERIC HUBER
`Sierra Club Environmental Law Program
`1650 38th Street, Suite 102W
`Boulder, CO 80301
`(303) 449-5595
`doug.hayes@sierraclub.org
`eric.huber@sierraclub.org
`
`Counsel for Sierra Club and
`Northern Plains Resource Council
`
`JACLYN H. PRANGE
`CECILIA SEGAL
`ALEXANDER TOM
`Natural Resources Defense Council
`111 Sutter Street, 21st Floor
`San Francisco, CA 94104
`(415) 875-6100
`jprange@nrdc.org
`csegal@nrdc.org
`atom@nrdc.org
`
`Counsel for Natural Resources Defense
`Council and Bold Alliance
`
`JARED MARGOLIS
`Center for Biological Diversity
`2852 Willamette Street # 171
`Eugene, OR 97405
`(971) 717-6401
`jmargolis@biologicaldiversity.org
`
`ERIC GLITZENSTEIN
`Center for Biological Diversity
`1411 K Street, NW, Suite 1300
`Washington, DC 20005
`(202) 849-8401
`eglitzenstein@biologicaldiversity.org
`
`Counsel for Center for Biological Diversity
`and Friends of the Earth
`
`TIMOTHY M. BECHTOLD
`Bechtold Law Firm, PLLC
`P.O. Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`
`Counsel for all Plaintiffs-Appellees
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 3 of 27
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`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ........................................................................... ii
`
`INTRODUCTION .......................................................................................... 1
`
`ARGUMENT .................................................................................................. 4
`
`
`I. The mootness issue should be remanded to the district court ................. 4
`
`
`
`II. The Munsingwear vacatur issue should also be remanded to the district
`court...................................................................................................... 11
`
`
`CONCLUSION ............................................................................................. 17
`
`
`
`
`i
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`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 4 of 27
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`TABLE OF AUTHORITIES
`
`Cases
`
`
`Akiachak Native Cmty. v. U.S. Dep’t of Interior,
`827 F.3d 100 (D.C. Cir. 2016) .............................................................. 16
`
`
`Akina v. Hawaii,
`835 F.3d 1003 (9th Cir. 2016) ............................................................... 10
`
`
`All. for the Wild Rockies v. Savage,
`897 F.3d 1025 (9th Cir. 2018) ............................................................... 15
`
`
`Am. Civil Liberties Union of Nev. v. Masto,
`670 F.3d 1046 (9th Cir. 2012) ............................................................... 12
`
`
`Am. Games, Inc. v. Trade Prods., Inc.,
`142 F.3d 1164 (9th Cir. 1998) ............................................................... 16
`
`
`Azar v. Garza,
`138 S. Ct. 1790 (2018)........................................................................... 15
`
`
`Cammermeyer v. Perry,
`97 F.3d 1235 (9th Cir. 1996) .................................................. 3, 12, 14, 16
`
`
`Chafin v. Chafin,
`568 U.S. 165 (2013) ............................................................................ 4, 5
`
`
`Conservation Cong. v. U.S. Forest Serv.,
`720 F.3d 1048 (9th Cir. 2013) ................................................................. 8
`
`
`Ctr. for Biological Diversity v. Exp.-Imp. Bank of the U.S.,
`894 F.3d 1005 (9th Cir. 2018) ............................................................. 4, 6
`
`
`Dilley v. Gunn,
`64 F.3d 1365 (9th Cir. 1995) ................................................ 12, 13, 14, 16
`
`
`Dominguez v. Kernan,
`906 F.3d 1127 (9th Cir. 2018) ............................................................. 4, 5
`
`ii
`
`
`
`
`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 5 of 27
`
`Garcia v. Lawn,
`805 F.2d 1400 (9th Cir. 1986) ................................................................. 4
`
`
`Hoisington v. Williams,
`499 F. App’x 693 (9th Cir. 2012) ............................................................ 9
`
`
`In Def. of Animals v. U.S. Dep’t of Interior,
`648 F.3d 1012 (9th Cir. 2011) ............................................................... 10
`
`
`Knox v. Serv. Emps. Int’l Union, Local 1000,
`567 U.S. 298 (2012) ................................................................................ 5
`
`
`League of Conservation Voters v. Biden,
`843 F. App’x 937 (9th Cir. 2021) .......................................................... 16
`
`
`Maldonado v. Lynch,
`786 F.3d 1155 (9th Cir. 2015) ................................................................. 4
`
`
`Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville,
`508 U.S. 656 (1993) ................................................................................ 8
`
`
`Norsworthy v. Beard,
`802 F.3d 1090 (9th Cir. 2015) ..........................................................13, 14
`
`
`NRDC. v. Winter,
`513 F.3d 920 (9th Cir. 2008) ................................................................... 9
`
`
`Ringsby Truck Lines, Inc. v. W. Conference of Teamsters,
`686 F.2d 720 (9th Cir. 1982) ................................................................. 12
`
`
`Serv. Emps. Int’l Union v. Nat’l Union of Healthcare Workers,
`598 F.3d 1061 (9th Cir. 2010) ................................................................. 4
`
`
`Shays v. Fed. Election Comm’n,
`340 F. Supp. 2d 39 (D.D.C. 2004) .......................................................... 6
`
`
`Super Tire Eng’g Co. v. McCorkle,
`416 U.S. 115 (1974) ................................................................................ 6
`
`
`
`
`
`iii
`
`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 6 of 27
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`United States v. Brandau,
`578 F.3d 1064 (9th Cir. 2009) ................................................ 3, 6, 8, 9, 11
`
`
`United States v. Munsingwear,
`340 U.S. 36 (1950) .................................................................................. 2
`
`
`U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
`513 U.S. 18 (1994) ...........................................................................12, 17
`
`
`Von Kennel Gaudin v. Remis,
`282 F.3d 1178 (9th Cir. 2002) ................................................................. 9
`
`
`Webster v. Reprod. Health Servs.,
`492 U.S. 490 (1989) .............................................................................. 11
`
`
`Wyoming v. U.S. Dep’t of Agric.,
`414 F.3d 1207 (10th Cir. 2005) ............................................................. 16
`
`
`
`Regulations
`
`
`86 Fed. Reg. 2744 (Jan. 13, 2021) .......................................................2, 7, 8, 13
`
`Other Authorities
`
`
`Complaint, Ctr. for Biological Diversity v. Spellmon,
`No. 4:21-cv-47-BMM (D. Mont. May 3, 2021)................................. 8, 17
`
`
`Office of Info. & Regul. Affairs, Office of Mgmt. & Budget, Reissuance and
`Modification of Nationwide Permits, Fall 2019 Unified Agenda,
`https://www.reginfo.gov/public/do/eAgendaViewRule?
`pubId=201910&RIN=0710-AA84 (last visited May 27, 2021). ............ 14
`
`
`
`
`
`iv
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 7 of 27
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`INTRODUCTION
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`The district court correctly held that Section 7 of the Endangered Species
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`Act (“ESA”) required the U.S. Army Corps of Engineers to initiate
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`consultation with the expert wildlife agencies before it reissued Nationwide
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`Permit 12 in 2017. Nationwide Permit 12 (“NWP 12” or “the Permit”) is used
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`approximately 14,000 times per year to discharge dredged and fill material into
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`our nation’s rivers, streams, and wetlands for the construction of pipelines and
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`other utility lines. Because those activities “may affect” species listed as
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`endangered or threatened under the ESA, the Corps’ reissuance of NWP 12
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`required consultation to ensure that the NWP 12 program will not jeopardize
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`imperiled wildlife.
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`The district court declared NWP 12 unlawful and remanded it to the
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`Corps to complete the required ESA consultation. Due to the gravity of the
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`Corps’ violations, the district court also vacated and enjoined the use of NWP
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`12 for the construction of new oil and gas pipelines. Although this Court
`
`denied motions to stay the injunction and vacatur pending appeal, the U.S.
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`Supreme Court subsequently limited that relief to the Keystone XL pipeline.
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`However, Federal Defendants and Defendant-Intervenors never obtained a
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`stay of the declaratory ruling or the remand to the Corps.
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`1
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 8 of 27
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`More than a year after the district court ordered the Corps to consult
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`with the National Marine Fisheries Service and the U.S. Fish and Wildlife
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`Service, there is no indication that the Corps ever started that process. Instead,
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`the Corps proceeded to again reauthorize NWP 12 at the very end of the prior
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`administration, well before its scheduled termination in 2022. See 86 Fed. Reg.
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`2744 (Jan. 13, 2021). In doing so, the Corps once more avoided programmatic
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`Section 7 consultation in exactly the manner the district court declared to be
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`unlawful.
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`Now—after reauthorizing NWP 12 without ever addressing the ESA
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`violation at issue in this case—Federal Defendants have moved this Court to
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`find that the early reissuance of NWP 12 in 2021 moots these appeals. Federal
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`Defendants also ask the Court to vacate the district court’s orders under United
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`States v. Munsingwear, 340 U.S. 36 (1950). Plaintiffs agree that the appeals are
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`moot as to the district court’s injunctive relief and vacatur of the 2017 iteration
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`of NWP 12 and do not oppose Munsingwear vacatur regarding the relief that
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`Plaintiffs previously abandoned on appeal.
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`However, Federal Defendants’ motion ignores the district court’s
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`declaratory relief and remand to the Corps to complete ESA consultation.
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`There are important factual questions—not readily answerable from the
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`appellate record—regarding how the latest reissuance of NWP 12 affects the
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`
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`2
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 9 of 27
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`parties’ dispute as to that relief. Furthermore, Plaintiffs have other claims—
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`under the Clean Water Act and the National Environmental Policy Act—that
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`are not at issue in these interlocutory appeals. Whether the remaining relief
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`and additional claims are moot should be determined by the district court in
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`the first instance. The Court should therefore remand to the district court to
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`evaluate these questions and determine mootness. See United States v. Brandau,
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`578 F.3d 1064, 1069-70 (9th Cir. 2009). Should the district court decide that
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`any aspects of the case are moot, it can then determine whether to vacate the
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`relevant portions of its orders pursuant to Munsingwear, but it would be
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`premature for the Court to address those arguments now.
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`If the Court nonetheless declines to remand the mootness issue and
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`concludes that these appeals no longer present a live case or controversy, it
`
`should still remand the question of Munsingwear vacatur to the district court.
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`Given the circumstances of this case—including the Corps’ voluntary conduct
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`in causing mootness—the Court should follow its “established practice” of
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`remanding to the district court to weigh the equities and determine whether to
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`vacate the remaining aspects of its orders. Cammermeyer v. Perry, 97 F.3d 1235,
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`1239 (9th Cir. 1996).
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`
`
`3
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 10 of 27
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`ARGUMENT
`
`I.
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`The mootness issue should be remanded to the district court
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`“A case ‘becomes moot only when it is impossible for a court to grant
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`any effectual relief whatever to the prevailing party.’” Dominguez v. Kernan, 906
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`F.3d 1127, 1132 (9th Cir. 2018) (quoting Chafin v. Chafin, 568 U.S. 165, 172
`
`(2013)). To determine whether a case has become moot on appeal, this Court
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`looks to whether it “can give the appellant any effective relief in the event that
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`it decides the matter on the merits in his favor.” Serv. Emps. Int’l Union v. Nat’l
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`Union of Healthcare Workers, 598 F.3d 1061, 1068 (9th Cir. 2010) (quoting
`
`Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986)). Here, Federal Defendants
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`have not carried their “heavy burden” to demonstrate that there is no effective
`
`relief this Court could issue in these appeals. Ctr. for Biological Diversity v. Exp.-
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`Imp. Bank of the U.S., 894 F.3d 1005, 1011 (9th Cir. 2018).
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`In arguing that the case is moot, Federal Defendants focus on two
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`elements of the relief awarded by the district court: injunctive relief and
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`vacatur of the 2017 NWP 12. Fed. Mot. 10-11.1 Plaintiffs agree that this case is
`
`
`1 Federal Defendants also argue that this case is “prudentially” moot,
`Fed. Mot. 15, but it is unclear whether there is a “prudential” mootness
`doctrine that could justify dismissal of the appeals. This Court has explicitly
`declined to adopt the doctrine outside of the bankruptcy context, see Maldonado
`v. Lynch, 786 F.3d 1155, 1161 n.5 (9th Cir. 2015) (en banc), and as the
`Supreme Court has explained, “[a]s long as the parties have a concrete interest,
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`
`
`
`4
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 11 of 27
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`moot as to those forms of relief. First, the Supreme Court has stayed the
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`district court’s injunction and vacatur, except as they apply to Keystone XL,
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`and Plaintiffs subsequently disavowed that stayed relief before this Court. Pls.’
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`Ans. Br. 49. Thus, as discussed below, it is appropriate to vacate the
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`corresponding portions of the district court’s orders. See infra p.11. There is no
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`longer a live dispute as to that abandoned relief. Second, as to Keystone XL,
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`Federal Defendants apparently agree that even if that project were to proceed
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`under NWP 12, it would have to do so under the 2021 version. See Fed. Mot.
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`15 (suggesting that any future controversy would “concern[] the 2021 Permit’s
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`application to Keystone XL”). The parties therefore lack any “concrete
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`interest,” Dominguez, 906 F.3d at 1132 (citation omitted), in affirmance or
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`reversal of the Keystone XL-specific vacatur.
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`However, the district court also issued declaratory relief and—
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`particularly relevant here—ordered a remand to the Corps to carry out
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`programmatic ESA Section 7 consultation. Federal Defendants’ motion says
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`nothing about that relief, which was never stayed. That silence, by definition,
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`cannot carry Federal Defendants’ “heavy burden” to establish that their appeal
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`of the district court’s grant of declaratory relief and remand is moot. Ctr. for
`
`
`however small, in the outcome of the litigation, the case is not moot,” Chafin,
`568 U.S. at 172 (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S.
`298, 307-08 (2012)).
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`
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`5
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 12 of 27
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`Biological Diversity, 894 F.3d at 1011 (burden not met where record was
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`insufficient to support defendants’ “bare assertion” of facts); Super Tire Eng’g
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`Co. v. McCorkle, 416 U.S. 115, 122 (1974) (declaratory relief not moot where
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`“the challenged governmental activity . . . has not evaporated or disappeared,
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`and, by its continuing and brooding presence, casts what may well be a
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`substantial adverse effect on the interests of the petitioning parties”).
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`Nonetheless, Plaintiffs agree that recent developments raise factual issues
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`regarding whether Federal Defendants or Defendant-Intervenors have any
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`remaining stake in their appeals. Accordingly, this Court should follow its
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`practice of remanding to the district court to resolve those factual questions
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`and determine whether a case or controversy still exists regarding Plaintiffs’
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`ESA claim, see, e.g., Brandau, 578 F.3d at 1069-70, and if so, whether those
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`developments require the court to modify its orders.
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`For example, the district court can engage in any necessary factfinding
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`regarding the status of its remand to the Corps. The Corps has now had over a
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`year to carry out the required consultation and could have undertaken many
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`steps in furtherance of the remand even while protecting its appellate rights. See
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`Shays v. Fed. Election Comm’n, 340 F. Supp. 2d 39, 49-51 (D.D.C. 2004). Yet the
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`Corps has remained conspicuously silent as to any such efforts.
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`
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`6
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 13 of 27
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`In addition, the district court is in the best position to assess what effect,
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`if any, the 2021 reauthorization of NWP 12 should have on the remand to the
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`Corps to complete consultation on the 2017 Permit. Contrary to Federal
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`Defendants’ representation that the 2017 version of NWP 12 “is no longer
`
`operative,” Fed. Mot. 8, the Corps’ 2021 reauthorization stated that
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`“[a]ctivities authorized by the 2017 NWPs currently remain authorized by
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`those NWPs until March 18, 2022,” 86 Fed. Reg. at 2747 (emphasis added).
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`Accordingly, the 2017 Permit is currently in effect and will be for many
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`months. The record does not disclose how many more water crossings will be
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`constructed as part of projects already verified under the 2017 Permit.
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`However, given the sheer volume of activities authorized under the 2017
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`Permit—an estimated 14,000 uses per year, SER-10–11—there may well be a
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`substantial amount of outstanding activities under the 2017 Permit that could
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`affect listed species. The Corps’ consultation, in turn, could result in changes
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`that mitigate harms from those activities, and provide crucial information so
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`the Corps can ensure that the cumulative impacts of the 2017 NWP 12 have
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`not, and will not, jeopardize listed species.
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`Consequently, the district court would be in the best position to consider
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`the current factual context and, in view of that, whether an ongoing case or
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`controversy remains as to the declaratory relief and remand to the Corps and,
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`
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`7
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 14 of 27
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`if so, whether the terms of the remand should be modified in view of the
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`activities that continue to be carried out under the 2017 NWP 12 and/or in
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`light of the issuance of the new iteration of NWP 12.
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`The district court is likewise best suited to determine whether the 2021
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`NWP 12 harms Plaintiffs “in the same fundamental way.” Ne. Fla. Chapter of
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`Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993);
`
`see also Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1053–54 (9th Cir.
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`2013) (appeal not moot where agency continued the challenged behavior). In
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`reauthorizing NWP 12, the Corps again refused to conduct ESA consultation,
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`see 86 Fed. Reg. at 2849, despite the district court’s ruling. Federal Defendants
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`suggest that the Corps’ decision to repeat that violation was justified by
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`material differences in the 2021 Permit and a new record, Fed. Mot. 12-13, but
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`those record-based arguments should be addressed by the district court in the
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`first instance, particularly given that it already has a case before it challenging
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`the Corps’ failure to consult on the 2021 Permit, see Compl., Ctr. for Biological
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`Diversity v. Spellmon, No. 4:21-cv-47-BMM (D. Mont. May 3, 2021), ECF
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`No. 1; Fed. Mot. 13 n.5.
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`This Court’s cases necessitate remand under these circumstances. The
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`Court has held that remand is appropriate where factual questions exist that
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`bear on potential mootness. See, e.g., Brandau, 578 F.3d at 1069-70 (remanding
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`
`
`8
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 15 of 27
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`for district court to hold evidentiary hearing on mootness); Von Kennel Gaudin
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`v. Remis, 282 F.3d 1178, 1183-84 (9th Cir. 2002) (denying motion to dismiss
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`and remanding for district court to resolve factual dispute as to mootness). This
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`Court has likewise found remand appropriate for the district court to address a
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`change in circumstances that implicates the relief ordered. See, e.g., NRDC. v.
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`Winter, 513 F.3d 920, 922 (9th Cir. 2008) (remanding to allow district court to
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`consider the effect of new executive actions on injunction); Hoisington v.
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`Williams, 499 F. App’x 693, 695 (9th Cir. 2012) (remanding injunctive relief
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`claims for further proceedings due to changed circumstances).
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`Brandau is instructive. There, the government argued that the appeal was
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`moot because the challenged policy had been replaced while the appeal was
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`pending. Brandau, 578 F.3d at 1066-67. The Court remanded the case for
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`factual development, noting that the government had provided “no
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`information at all regarding the practical effect of the new [policy].” Id. at
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`1067; see also id. at 1069-70. Here, as explained, questions remain as to how the
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`issuance of a new version of NWP 12 affects the district court’s remand to
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`complete ESA consultation, which the Corps has apparently failed to comply
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`with. As in Brandau, id. at 1069-70, remand to the district court for further
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`factual development is warranted.
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`
`
`9
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 16 of 27
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`Finally, remand is also appropriate because Plaintiffs have other claims
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`that are not at issue in these interlocutory appeals, including facial claims
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`under the Clean Water Act and the National Environmental Policy Act.
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`2-TC_ER-963, -966–68; 1-ER-60–64. As Federal Defendants acknowledge,
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`those claims are “not technically before this Court.” Fed. Mot. 20 n.9.
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`Therefore, at the very least, a remand or further proceedings are necessary for
`
`the district court to consider the alleged mootness of those claims in the first
`
`instance. See Akina v. Hawaii, 835 F.3d 1003, 1011 & n.3 (9th Cir. 2016)
`
`(dismissing as moot interlocutory appeal from denial of preliminary injunction
`
`and explaining that “[w]e pass no judgment on what aspects of the plaintiffs’
`
`lawsuit continue to present a live controversy”); In Def. of Animals v. U.S. Dep’t
`
`of Interior, 648 F.3d 1012, 1013 (9th Cir. 2011) (per curiam) (similarly
`
`dismissing interlocutory appeal as moot and “express[ing] no opinion here as
`
`to whether the entire action is moot”).
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`In sum, Plaintiffs agree that there is no longer a live controversy
`
`regarding the injunctive and vacatur elements of the district court’s relief. But
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`Federal Defendants have failed to establish that these appeals are moot insofar
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`as they concern the other forms of relief, particularly the remand to the Corps
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`to engage in programmatic ESA Section 7 consultation. The record on appeal
`
`is insufficient to resolve that question. Therefore, remand to the district court is
`
`
`
`10
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`
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 17 of 27
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`appropriate to consider in the first instance the present factual context, whether
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`it renders the remand ordered by the district court moot, and, if not, whether it
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`warrants any revision to that form of relief. See, e.g., Brandau, 578 F.3d at 1067-
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`70.
`
`II. The Munsingwear vacatur issue should also be remanded to the district
`court
`
`Even if this Court declines to remand the mootness issue and concludes
`
`that the entire case is moot, the Court should still remand the question of
`
`Munsingwear vacatur to the district court. A discussed above, Plaintiffs do not
`
`oppose Munsingwear vacatur as to the portions of the district court’s orders
`
`granting the relief that Plaintiffs abandoned on appeal—the district court’s
`
`injunction and vacatur as to projects besides Keystone XL—and would not
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`object to vacatur of those parts of the orders on remand. See Webster v. Reprod.
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`Health Servs., 492 U.S. 490, 512-13 (1989). However, Federal Defendants also
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`seek vacatur of the rest of the district court’s orders and the relief granted: the
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`declaratory relief, the remand to the agency to complete Section 7
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`consultation, and the vacatur of NWP 12 as to Keystone XL. The district court
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`is in the best position to consider Munsingwear vacatur in the first instance, both
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`to address any factual disputes about causation and to balance the equities to
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`11
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 18 of 27
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`determine whether vacating its orders is appropriate. See Dilley v. Gunn, 64 F.3d
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`1365, 1370-71 (9th Cir. 1995).
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`Munsingwear vacatur is fundamentally an equitable remedy, and hence
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`the party seeking it must establish an “equitable entitlement” to it. See U.S.
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`Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994); Dilley, 64 F.3d
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`at 1370 (noting that “the touchstone of vacatur is equity”). Under the equitable
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`test set forth in Bancorp, the decision below generally should not be vacated
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`where the party seeking vacatur caused or contributed to the alleged mootness.
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`Bancorp, 513 U.S. at 24, 26 (denying motion for vacatur where mootness was
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`caused by settlement); see also Ringsby Truck Lines, Inc. v. W. Conference of
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`Teamsters, 686 F.2d 720, 722 (9th Cir. 1982) (party that moots its own appeal
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`“is in no position to complain that [its] right of review of an adverse lower
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`court judgment has been lost”); Am. Civil Liberties Union of Nev. v. Masto, 670
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`F.3d 1046, 1066 (9th Cir. 2012) (where party seeking vacatur caused mootness,
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`court retained authority to dispose of case in manner “most consonant to
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`justice” (quoting Bancorp, 513 U.S. at 24)). In such situations, this Court’s
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`“established practice” is to remand to the district court for it to consider
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`“vacating its own judgment after an independent review of the equities.”
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`Cammermeyer, 97 F.3d at 1239. Where further factual development is necessary
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`to determine whether a party caused mootness, “the appropriate course” is
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 19 of 27
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`similarly to remand for the district court to resolve those issues and then
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`“determine whether to vacate its order.” Norsworthy v. Beard, 802 F.3d 1090,
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`1092 (9th Cir. 2015) (per curiam); accord Dilley, 64 F.3d at 1370-71 (noting this
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`Court’s “established procedure” of remanding for district court “to determine
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`[causation] as a threshold matter” and then apply the appropriate vacatur
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`analysis in the first instance).
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`Here, even assuming that all relief—including the remand to the Corps—
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`has been rendered moot, it is readily apparent that the Corps’ own actions
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`caused the alleged mootness. For example, it is undisputed that although the
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`2017 NWP 12 does not expire until 2022, the Corps opted to reauthorize a
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`new version of the Permit after the district court’s ruling in early 2020 and long
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`before expiration of the current Permit, without engaging in any Section 7
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`consultation. Federal Defendants suggest that the premature reauthorization of
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`NWP 12 was “wholly unrelated” to this litigation. Fed. Mot. 19 (quoting
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`Dilley, 64 F.3d at 1372); see also id. at 17. But the 2021 reissuance flatly
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`contradicts that characterization, acknowledging that the Corps reissued NWP
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`12 “partly to address issues raised in [the district court’s] decision in Northern
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`Plains Resource Council, et al., v. U.S. Army Corps of Engineers, et al., (Case No. CV
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`19-44-GF-BMM) . . . .” 86 Fed. Reg. at 2747.
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`13
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 20 of 27
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`And even if the Corps’ own representation did not foreclose that
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`argument, the suspicious timing—including finalization of the new Permit in
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`the last days of the outgoing administration—strongly suggests that the Corps’
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`actions were related, and at least raises factual questions that the district court
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`would be in the best position to consider. See Norsworthy, 802 F.3d at 1092;
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`Dilley, 64 F.3d at 1371. Although the Corps first announced that it was
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`considering changes to some NWPs in October 2017, even the Fall 2019
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`unified agenda did not provide any specific timeframe for doing so; in fact, the
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`agenda provided alternatives, such as conducting a rulemaking to modify those
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`NWPs rather than reissuing them or taking no action until the next scheduled
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`rulemaking in 2022. Cf. Fed. Mot. 17 & n.7.2 In other words, contrary to
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`Federal Defendants’ suggestion, the Corps had not previously committed to
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`reissuing NWP 12 early.
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`Because Federal Defendants caused the alleged mootness “by replacing
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`the challenged [permit],” the Court should follow its “established practice” and
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`remand for the district court to balance the equities and decide whether to
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`vacate its own order. Cammermeyer, 97 F.3d at 1239. To the extent that
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`2 See also Office of Info. & Regul. Affairs, Office of Mgmt. & Budget,
`Reissuance and Modification of Nationwide Permits, Fall 2019 Unified Agenda,
`https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN
`=0710-AA84 (last visited May 27, 2021).
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`14
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 21 of 27
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`Defendant-Intervenors also request Munsingwear vacatur on their own behalf—
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`and assuming that some Defendant-Intervenors did not cause the alleged
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`mootness—that does not dictate a different outcome here. While this Court
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`“typically” vacates without remanding to the district court when a party
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`seeking Munsingwear vacatur did not cause mootness, All. for the Wild Rockies v.
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`Savage, 897 F.3d 1025, 1032 (9th Cir. 2018), the Court has not established a
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`rule that this disposition is “typically” appropriate when another party seeking
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`vacatur was responsible for mootness. Rather, “the decision whether to vacate
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`turns on the conditions and circumstances of the particular case.” Azar v.
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`Garza, 138 S. Ct. 1790, 1792 (2018) (internal quotation marks and citation
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`omitted). Here, reflexively granting Defendant-Intervenors’ requests would
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`overlook the Corps’ own conduct in causing the asserted mootness: apparently
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`defying the district court’s remand for over a year (despite failing to obtain a
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`stay of that relief from the district court, this Court, or the Supreme Court),
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`and then attempting to moot Plaintiffs’ claims by repeating the same legal
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`violation. Rewarding the agency with Munsingwear vacatur under these
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`circumstances would endorse the Corps’ total disregard of federal courts’
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`authority based solely on the mere presence of aligned intervenor-appellants.3
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`3 The Corps’ conduct here distinguishes these appeals from cases where a
`governmental defendant moots a previously aligned intervenor-appellant’s
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`15
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`Case: 20-35412, 05/28/2021, ID: 12128314, DktEntry: 158, Page 22 of 27
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`Accordingly, this case warrants the closer scrutiny that accompanies a
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`remand to the district court to allow it to balance the equities and determine
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`whether it should vacate its own order. See Dilley, 64 F.3d at 1370-71;
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`Cammermeyer, 97 F.3d at 1239. Any “attendant hardships” that Defendant-
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`Intervenors may assert in support of Munsingwear vacatur can also be
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`considered by the district court in the first instance. Dilley, 64 F.3d at 1371
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`(citation omitted); cf. Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1170
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`(9th Cir. 1998) (observing that “a district court should enjoy greater equitable
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`discretion when reviewing [possible vacatur of] its own judgments than do
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`appellate courts operating at a distance”). And should Federal Defendants
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`contend that the Corps had new, legitimate reasons for refusing to consult on
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`this iteration of NWP 12, the district court is uniquely well situated to assess
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`those arguments as well, given that it already has a case before it challenging
`
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`appeal by reversing course and redressing the legal violation identified by the
`district court. See Akiachak Native Cmty. v. U.S. Dep’t of Interior, 827 F.3d 100,
`104-05 (D.C. Cir. 2016) (revision of regulations to remove unlawful
`exception); Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir.
`2005) (promulgation of new rule removing “portio