FRIENDS OF THE EARTH, INC., a New York Corporation, Edward Dobson, Randall H. Gloege, Chuck Davis and Dr. J. H. Johnson, Plaintiffs-Appellants, v. Bob BERGLAND, in his official capacity as Secretary of Agriculture, John R. McGuire, in his official capacity as Chief, U. S. Forest Service, Steve Yurich, in his official capacity as Regional Forester, Region 1, U. S. Forest Service, Dan MacIntyre, in his official capacity as Forest Supervisor, Custer National Forest, U. S. Forest Service, Gary Wetzsteon, in his official capacity as Beartooth District Ranger, Custer National Forest, U. S. Forest Service and the Johns-Manville Sales Corporation, a Colorado Corporation, Defendants-Appellees.
No. 75-3477
United States Court of Appeals, Ninth Circuit
June 13, 1978
576 F.2d 1377
Before WRIGHT and CHOY, Circuit Judges, WEIGEL, District Judge.
Robert T. Connery (argued), Denver, Colo., George R. Hyde (argued), Dept. of Justice, Washington, D. C., for defendants-appellees.
Appeal from the United States District Court, District of Montana.
WEIGEL, District Judge:
Plaintiffs below appeal from an order of the district court granting summary judgment for defendants.2 Plaintiffs seek to challenge the decision of the Secretary of Agriculture, through the United States Forest Service (“Service“), approving a plan submitted by the Johns-Manville Sales Corporation (“JMSC“) to engage in exploratory mining operations in the “Stillwater Complex” of the Custer National Forest. The plan called for JMSC (1) to drill a 3,000 foot exploration adit next to the West Fork of the Stillwater River; (2) to make spot improvements of approximately six miles of nearby road; (3) to construct a fifty foot bridge across the river; (4) to build a temporary campsite near the adit; (5) to construct a 300 foot access road to the adit; and (6) to deposit nearby approximately 4,000 cubic yards of rock extracted from the adit. The operation was to have been completed on or about September 1, 1975, at which time the temporary buildings were to have been removed. Plaintiffs assert that the decision of the Service approving the plan was made in violation of the National Environmental Policy Act of 1969,
We have concluded that this case has become moot while on appeal. While the JMSC operation continued beyond the anticipated date of completion, all work ceased in May, 1976, when JMSC struck water in the course of its exploratory activities. While it is true, as counsel for plaintiffs pointed out at oral argument, that JMSC sought and received permission to extend the adit an additional 3,000 feet, that permission expired, without being used, in December, 1975. See Affidavit of J. Michael Sharratt, Exploration Manager of JMSC (filed April 5, 1978) (hereinafter “Sharratt affidavit“).3 JMSC is also under an obligation to secure a water discharge permit from the State of Montana before it can continue its exploration. Id.; Affidavit of Geo. R. Hyde, Atty., U. S. Dep‘t of Justice (filed April 5, 1978). The temporary buildings will be removed in November or December, 1978. Sharratt affidavit.
Where the activities sought to be enjoined have already occurred, and the appellate courts cannot undo what has already been done, the action is moot. In Matter of Combined Metals Reduction Co., 557 F.2d 179 (9th Cir. 1977). This is especially so where, as here, no stay on appeal has been sought. Id. at 189.
Counsel for plaintiffs has suggested that the case nonetheless is not moot because JMSC may engage in similar operations in other places, attracted by the rich minerals in the area of the “Stillwater Complex“, coupled with impending deadlines on exploration in the area set by the Wilderness Act,
The case is remanded to the district court to be dismissed as moot. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).