74 F.4th 489
7th Cir.2023Background
- The Cardinal–Hickory Creek Project: a proposed transmission line carrying Iowa wind power through the Upper Mississippi River National Wildlife and Fish Refuge to southern Wisconsin.
- Rural Utilities Service (RUS) completed an EIS in Oct 2019; Fish and Wildlife Service (FWS) and Army Corps adopted the EIS. FWS issued a compatibility determination and right‑of‑way permit in Sept 2020.
- Environmental groups sued under the Refuge Act and NEPA. While litigation was pending, utilities sought a route amendment and proposed a land exchange; FWS discovered it had relied on incorrect easement documents and revoked the compatibility determination and permit (Aug 27, 2021) and said it would consider the land‑swap.
- Nearly two years passed without a new FWS decision; the district court nevertheless ruled the permit and any land exchange unlawful, vacated RUS’s adoption of the EIS, remanded, and denied a permanent injunction against construction on private land.
- Agencies, utilities, and plaintiffs appealed; the Seventh Circuit first addressed jurisdiction/mootness and then whether agency actions were final and reviewable under the APA and NEPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenge to revoked permit | Revocation does not moot suit because FWS could reissue a permit; dispute remains live | Revocation rendered the permit challenge moot | Not moot: court had jurisdiction because agency action could reasonably recur and no binding promise not to reissue |
| APA finality of compatibility determination/permit | Prior compatibility determination and permit were final and reviewable | Revocation and ongoing agency consideration mean no final agency action or record | No final action: rescission removed legal effect; land exchange/permit decisions remain unresolved and not reviewable under §704 |
| Reviewability of proposed land exchange vs. permit (standards) | Land exchange should be subject to same compatibility standard as permit | Statutes differ; land swap may be governed by different suitability/net‑benefit standards | District court erred in assuming identical standards; merits premature because no final agency decision or record |
| NEPA/EIS challenge to RUS adoption | RUS’s adoption of the EIS is final and reviewable under NEPA | Adoption was a preliminary step; a final funding/recommendation decision has not been made | Adoption alone is not a reviewable final agency action here; NEPA claim is premature absent a concrete federal decision |
| Permanent injunction against private construction | Preliminary injunction should be made permanent to halt project completion | Construction on private, non‑federal land is outside federal control and not enjoinable | Affirmed: district court did not abuse discretion in denying a permanent injunction for private‑land construction |
Key Cases Cited
- Chafin v. Chafin, 568 U.S. 165 (2013) (mootness requires no possibility of recurrence)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (cessation moots suit only if recurrence is not reasonably expected)
- Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590 (2016) (agency determination can be final when it consummates decisionmaking and determines rights/obligations)
- Bennett v. Spear, 520 U.S. 154 (1997) (finality requires consummation and legal consequences)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (pre‑enforcement review where regulation forces choice between compliance or penalties)
- Salinas v. Railroad Retirement Bd., 141 S. Ct. 691 (2021) (§704 asks whether a terminal event has occurred)
- Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068 (7th Cir. 2016) (EIS adoption alone may be preliminary to a reviewable agency decision)
- Ozinga v. Price, 855 F.3d 730 (7th Cir. 2017) (presumption that agencies act in good faith does not automatically moot suits)
- Sefick v. Gardner, 164 F.3d 370 (7th Cir. 1998) (voluntary cessation moots suit only when change is embodied in statute/regulation or plainly irreversible)