699 F. App'x 799
10th Cir.2017Background
- The Osage Mineral Estate is a separately managed subsurface estate; the Osage Minerals Council (OMC) leases minerals but the Secretary of the Interior must approve those leases.
- OMC entered leases with Chaparral (2012–2013); BIA approved the leases and related drilling permits relying on either a categorical exclusion or a 1979 Environmental Assessment (EA).
- Trustee for the Paul B. Hayes Family Trust sued, alleging the BIA failed to comply with NEPA and seeking declaratory relief and trespass damages; OMC intervened and moved to dismiss for failure to join an indispensable party.
- The district court denied OMC’s dismissal motion and held the BIA approvals violated NEPA; those orders were certified as appealable and OMC appealed.
- While the appeal was pending, the BIA issued new NEPA analyses (Programmatic EAs in 2014 and 2015) and retroactively reapproved the leases and assignment based on the new analyses; the original permits expired.
- The trustee has a separate pending challenge to the BIA’s retroactive reapproval; in this appeal the government and OMC argued the appeal became moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal remains justiciable or is moot after BIA reapproval based on new NEPA work | Hayes: Appeal is live because district-court rulings (including non-joinder ruling) remain operative and permits remain harmful | OMC & Gov: BIA’s new NEPA analyses and retroactive approvals supersede the challenged approvals, so any decision would have no practical effect | Moot: Appeal dismissed as moot because new NEPA analysis and reapproval superseded the challenged actions |
| Whether non-joinder of an indispensable party (OMC) warranted dismissal | Hayes: Non-joinder issue preserves a live controversy distinct from NEPA merits | OMC: Dismissal not dispositive because underlying approvals are supplanted by new agency action | Mootness foreclosed decision on non-joinder: court declined to rule because decision would have no real-world effect |
| Whether voluntary cessation exception applies to prevent mootness | Hayes: BIA’s actions could be voluntary and reversible; exception should apply | OMC & Gov: BIA withdrew reliance on 1979 EA and adopted new procedures, so conduct not likely to recur | Voluntary cessation exception inapplicable: record shows no reasonable expectation BIA will revert to prior EA/policy |
| Whether case fits exception "capable of repetition, yet evading review" | Hayes: Short-lived administrative approvals may evade review | OMC & Gov: NEPA analyses are not inherently too short to litigate; no reasonable expectation of recurrence | Exception not met: first prong (too short to litigate) fails |
Key Cases Cited
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (explains mootness requires a live case or controversy and asks whether relief would have real-world effect)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (defines mootness as loss of a live controversy or legally cognizable interest)
- Wyoming v. U.S. Dep’t of Agriculture, 414 F.3d 1207 (10th Cir. 2005) (holding subsequent agency action can eliminate the issues on which a case is based)
- U.S. Dep’t of Interior v. [Wyoming decision], 674 F.3d 1220 (10th Cir. 2012) (agency reanalysis can supersede prior procedures and moot challenges to earlier approvals)
- County of Los Angeles v. Davis, 440 U.S. 625 (1979) (establishes standard for voluntary cessation mootness exception)
- Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884 (10th Cir. 2008) (articulates two-prong test for "capable of repetition, yet evading review" exception)