827 F.3d 100
D.C. Cir.2016Background
- Akiachak Native Community and other Alaska Native tribes sought to have the Department of the Interior take Alaska lands into trust to secure tribal jurisdiction and local regulation.
- Interior long maintained a regulation (the "Alaska exception," 25 C.F.R. §151.1) barring most land-into-trust acquisitions in Alaska, based on a 1978 Solicitor opinion interpreting ANCSA.
- Akiachak sued, claiming the Alaska exception violated the Indian Reorganization Act’s antidiscrimination provision, the Constitution, and the APA; the State of Alaska intervened defending the exception and arguing ANCSA compelled it.
- The district court held the Alaska exception invalid, severed and vacated it, and enjoined Interior from taking Alaska land into trust pending appeal.
- Interior initially appealed but then promulgated a new rule removing the Alaska exception after notice-and-comment and dismissed its appeal; Akiachak joined motions to dismiss as moot; Alaska continued its appeal.
- The D.C. Circuit majority dismissed Alaska’s appeal as moot for lack of Article III jurisdiction and vacated the district-court judgment under Munsingwear; Judge Brown dissented, arguing Alaska had an independent, live claim that the court should decide.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal after agency rescission of challenged regulation | Alaska: the appeal remains live because it sought affirmative relief (declaration that ANCSA compels the Alaska exception) and that statutory question survives repeal | Interior: rescission of the challenged regulation moots the case; no reasonable expectation rule not implicated; Akiachak’s claims are rendered nonjusticiable | Majority: appeal is moot because the Alaska exception no longer exists and no evidence shows likely reenactment; dismissal for lack of jurisdiction |
| Whether Alaska pleaded an independent affirmative claim | Alaska: its answer requested entry of judgment declaring the exception "consistent with and compelled by ANCSA," which seeks affirmative relief | Majority: that request was a defensive pleading/affirmative defense, not a separately pleaded crossclaim; Rule 8(c)(2) was not invoked | Majority: Alaska asserted defenses, not an independent claim that preserves appellate jurisdiction |
| Availability of effective relief from appellate court now that regulation is rescinded | Alaska: an appellate declaration about ANCSA would resolve a present dispute over whether ANCSA prohibits trust acquisitions in Alaska | Interior: any advisory ruling would be improper; Alaska can bring a fresh APA challenge or litigate future trust decisions | Majority: court lacks power to issue advisory relief; Alaska may pursue new suit or challenge specific trust acquisitions |
| Whether district-court vacatur rather than remand prevents agency mooting | Alaska/Dissent: vacatur meant the rule was already dead; Interior’s subsequent rulemaking was meaningless and cannot moot the appeal | Majority: Interior’s independent notice-and-comment rulemaking removing the exception produced a live change that mooted the case | Majority: agency action mooted the appeal; Munsingwear vacatur appropriate to clear the path for relitigation |
Key Cases Cited
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (Article III requires a live controversy at all stages of review)
- U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980) (case is moot when issues are no longer live or parties lack legally cognizable interest)
- Diffenderfer v. Central Baptist Church of Miami, Fla., Inc., 404 U.S. 412 (1972) (challenge to repealed statute is moot when requested relief cannot be granted)
- Larsen v. U.S. Navy, 525 F.3d 1 (D.C. Cir. 2008) (agency elimination of challenged policy can moot a suit absent reasonable expectation of reenactment)
- Wyoming v. USDA, 414 F.3d 1207 (10th Cir. 2005) (rescission of enjoined regulation mooted challenge where substantively challenged portions no longer existed)
- U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) (courts should dispose of moot cases in a manner consonant with justice)
- United States v. Munsingwear, Inc., 340 U.S. 36 (1950) (vacatur is appropriate when an appellant is prevented from obtaining review through happenstance)