IN DEFENSE OF ANIMALS; Dreamcatcher Wild Horse and Burro Sanctuary; Barbara Clarke; Chad Hanson; Linda Hay, Plaintiffs-Appellants v. UNITED STATES DEPARTMENT OF THE INTERIOR; Bureau of Land Management; Ken Salazar, Secretary of the U.S. Department of the Interior; Robert Abbey, Director of the Bureau of Land Management; Ken Collum, Acting Field Manager of Eagle Lake Field Office, Defendants-Appellees.
No. 10-16715
United States Court of Appeals, Ninth Circuit
Argued and Submitted Jan. 11, 2011. Filed Aug. 15, 2011.
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Before: MARY M. SCHROEDER, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges.
Rachel Fazio, Cedar Ridge, CA, for plaintiffs-appellants In Defense of Animals, et al. David C. Shilton, Washington, D.C., for defendants-appellees Kenneth L. Salazar, Secretary of the Interior, et al.
Moreover, refusing such an instruction does not prevent Marguet-Pillado from challenging the sufficiency of the evidence of his alienage or relieve the government from its burden of proof on that element of the offense. Our prior decision aptly illustrates this distinction. Although we held that Marguet-Pillado could not claim derivative citizenship through Michael Marguet, we nonetheless remanded the case, because improperly admitted hearsay evidence was part of the government‘s proof of alienage. Id. at 1087. Such an approach is also in keeping with our decision in Sandoval-Gonzalez:
To be clear, the government does not have the burden of disproving each element of derivative citizenship; only “alienage” is among the elements of the crime, so only it must be proven.... [T]he government advanced sufficient evidence for a rational factfinder to conclude beyond a reasonable doubt that Sandoval is a Mexican citizen, even though the government did not disprove each criterion for derivative citizenship. The government could endeavor to disprove each requirement for derivative citizenship in an effort to eliminate all doubt—for example, by producing the defendants’ parents’ own immigration or residency records—but it need not do so.
Sandoval-Gonzalez, 642 F.3d at 724.
Because Marguet-Pillado‘s claim of derivative citizenship through Michael Marguet was properly foreclosed by the law of the case, I respectfully dissent.
PER CURIAM Opinion; Dissent by Judge RAWLINSON.
OPINION
PER CURIAM:
This interlocutory appeal arises from an action instituted in the district court to stop the government from rounding up, destroying, and auctioning off wild horses and burros in the Twin Peaks Herd Management Area on the California-Nevada border. Plaintiffs allege that the government‘s actions will violate the Wild Free-Roaming Horses and Burros Act (“Wild Horses Act“),
Plaintiffs are two non-profit organizations dedicated to protecting wild horses and burros, In Defense of Animals and Dreamcatcher Wild Horse and Burro Sanctuary, as well as members of these organizations, Barbara Clarke, Chad Hanson, and Linda Hay (collectively “Plaintiffs“). Plaintiffs filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction on August 5, 2010 to stop the roundup of horses that was scheduled to begin August 9, 2010 and to last 45-60 days. The district court denied the injunction, a motions panel at this court denied an emergency motion for injunctive relief pending appeal on August 10, 2010, and the roundup has now taken place. The horses are currently offsite and the remainder of the plan is apparently going forward.
Plaintiffs’ motion raises serious legal questions concerning whether the large-scale removal of horses conflicts with the Wild Horses Act and whether an Environmental Impact Statement is required before any action can be implemented. The
The initial stage of the plan has, however, now concluded and the roundup has taken place. This appeal, therefore, is moot. We reached the same conclusion in a similar case. Am. Horse Prot. Ass‘n, Inc. v. Watt, 679 F.2d 150, 151 (9th Cir. 1982) (noting that the court “cannot order [the completed roundup‘s] effects undone“). We express no opinion here as to whether the entire action is moot. It remains pending before the district court.
The dissent appears to construe our holding to be that plaintiffs’ case is moot. This is incorrect. We hold only that this interlocutory appeal from the denial of a preliminary injunction is moot because the roundup sought to be enjoined has taken place. In the event that plaintiffs prevail on the merits of their claims, the district court should consider what relief is appropriate.
The posture of this case is similar to that in Animal Legal Defense Fund v. Shalala, 53 F.3d 363 (D.C. Cir. 1995), where the action that the plaintiff sought to preliminarily enjoin had already occurred. Id. at 366. In dismissing the appeal, the court said that the “parties no longer have a legally cognizable interest in the determination of whether the preliminary injunction was properly denied.” Id. It then went on to say that “the underlying dispute... remains alive.” Id. The same is true, insofar as the record before us reflects in this case.
DISMISSED.
RAWLINSON, Circuit Judge, dissenting:
I do not agree with the majority‘s view that the injunctive relief sought pursuant to the National Environmental Policy Act (NEPA) has been mooted.
A claim for relief is not moot so long as we can provide effective relief, in this case return of the horses to their native habitat. Cf. Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir. 1978) (holding case moot where “courts cannot undo what has already been done“).
It is undisputed that the BLM rounded up all the horses on the range and then decided which horses should be released back into the Twin Peaks area and which should be transported to holding areas.
This would be a different case if the horses who were rounded up had all been dispersed. But that is not what happened. The horses that were rounded up are currently being kept in various holding areas throughout the southwestern United States. As easily as the horses were transported out of their natural habitat, they can be returned. In this circumstance, relief is available and the request for injunctive relief is not moot. See Nw. Envt‘l Dfs. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988).
The majority reasons that this appeal is moot because “[t]he motion for preliminary injunction sought to enjoin only the effects of implementing the initial phase.” See Opinion, p. 1013. There are two bases for challenging this reasoning. The first basis is that removal of the horses was part of the initial phase. Indeed, the status quo sought by the Plaintiffs in the motion was return of the horses to their native habitat. The second basis is that the determination of mootness is not tied to the initial remedy sought. Rather, “in deciding a mootness issue, the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Nw. Envt‘l Dfs. Ctr., 849 F.2d at 1244-45 (citation and internal question mark omitted). Undoubtedly, effective relief can be granted in this case by returning the removed horses to their natural habitat. The majority is incorrect in thinking that I construe the majority decision as holding that the entire case is moot. See Majority Opinion, p. 1013-14. Not so. My dissent is based on the majority‘s erroneous conclusion that the plaintiffs’ interlocutory appeal is moot. With a ready remedy available, this appeal is not moot. For that reason, I respectfully dissent.