Earth Island Institute v. Kevin Elliott

FILED

NOT FOR PUBLICATION

AUG 14 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARTH ISLAND INSTITUTE; No. 18-16354 SEQUOIA FORESTKEEPER,

D.C. No. Plaintiffs-Appellants, 1:17-cv-01320-LJO-SAB v.

MEMORANDUM* KEVIN ELLIOTT, in his official capacity as Forest Supervisor of the Sequoia National Forest; UNITED STATES FOREST SERVICE,

Defendants-Appellees, SIERRA FOREST PRODUCTS,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding Argued and Submitted August 6, 2019 Anchorage, Alaska

Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.

Appellants Earth Island Institute and Sequoia Forestkeeper (collectively, “Earth Island”) appeal the district court’s order granting summary judgment to the United States Forest Service and other defendants.

The parties agree that this case is moot unless the “capable of repetition, yet evading review” exception applies. See Matter of Bunker Ltd. Partnership, 820 F.2d 308, 312 (9th Cir. 1987). The exception does not apply because Earth Island could have sought a stay of the challenged tree removal activities pending appeal in this case and can still seek a stay of such activities in two similar pending cases. Where a “prompt application for a stay pending appeal can preserve an issue for appeal, the issue is not one that will evade review.” Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1016 (9th Cir. 1989) (quoting Am. Horse Protection Ass’n, Inc. v. Watt, 679 F.2d 150, 151 (9th Cir. 1982) (per curiam)). Earth Island’s reliance on Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851 (9th Cir. 1999), and Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774 (9th Cir. 2012), is misplaced because in those cases, a stay or injunction would not have preserved the issue for appeal.1

DISMISSED AS MOOT.