State of Nevada v. United States ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF NEVADA, No. 19-15202
Plaintiff-Appellant, D.C. No.
3:18-cv-00569-MMD-CBC
v.
UNITED STATES OF AMERICA; U.S. ORDER*
DEPARTMENT OF ENERGY; RICK
PERRY, in his official capacity as Secretary
of Energy; NATIONAL NUCLEAR
SECURITY ADMINISTRATION; LISA E.
GORDON, in her official capacity as
Administrator of the National Nuclear
Security Administration and Undersecretary
for Nuclear Security,
Defendants-Appellees,
and
STATE OF SOUTH CAROLINA,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted August 9, 2019**
San Francisco, California
Before: HAWKINS, McKEOWN, and BENNETT, Circuit Judges.
The State of Nevada (“Nevada”) appeals the district court’s order denying its
motion for a preliminary injunction to stop the government from shipping
plutonium from the Savannah River Site in South Carolina to the Nevada National
Security Site (“NNSS”). Because the government has completed the shipments, we
dismiss this appeal as moot.
In 2017, the U.S. District Court for the District of South Carolina ordered
the government to comply with certain statutory obligations and remove one metric
ton of defense plutonium from government facilities in that state. See South
Carolina v. United States, 243 F. Supp. 3d 673 (D.S.C. 2017), aff’d, 907 F.3d 742
(4th Cir. 2018) (the “South Carolina Order”). The government proposed shipping
the plutonium to the NNSS as well as a site in Texas (“the proposed action”) to
comply with the South Carolina Order.
In November 2018, Nevada sued challenging the proposed action, alleging
that the government breached its obligations under the National Environmental
Policy Act, 42 U.C.S. §§ 4321, et seq. Nevada moved to “preliminarily enjoin[]
Defendants . . . from shipping (or directing any other entity to ship) all or any part
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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of the one metric ton . . . of plutonium [under the proposed action] . . . from DOE’s
Savannah River Site (SRS) which is located in the State of South Carolina, in and
through Nevada to the DOE’s Nevada Nuclear Security Site (NNSS)[.]” Nevada
did not seek any other type of preliminary injunctive relief.
The government had already shipped one-half metric ton of plutonium from
South Carolina to the NNSS before Nevada filed its complaint or motion for a
preliminary injunction. Nevada did not know this non-public information when it
filed. The government represented that it has completed all shipments of plutonium
from South Carolina to the NNSS under the proposed action, and that any
plutonium remaining in South Carolina will be shipped to other facilities in other
states.
The government argued below that the preliminary injunction request was
moot because it had completed all proposed shipments of plutonium from South
Carolina to Nevada. The government argues this appeal is moot for the same
reason. We agree.
“The Constitution limits Article III federal courts’ jurisdiction to deciding
‘cases’ and ‘controversies.’” Oklevueha Native Am. Church of Haw., Inc. v.
Holder, 676 F.3d 829, 835 (9th Cir. 2012) (quoting U.S. Const. art. III, § 2).
“Mootness, like the related doctrine of standing, restricts judicial power to the
decision of cases and controversies, so that our elected government retains the
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general power to establish social policy.” Nome Eskimo Cmty. v. Babbitt, 67 F.3d
813, 815 (9th Cir. 1995) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-61
(1992)). The Supreme Court has “repeated[ly]” described mootness as “the
doctrine of standing set in a time frame: The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue throughout its
existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000) (quoting Arizonans for Official English v. Arizona,
520 U.S. 43, 68 n.22 (1997)).1
“[A] suit becomes moot when ‘the issues presented are no longer “live” or
the parties lack a legally cognizable interest in the outcome.’” Chafin v. Chafin,
568 U.S. 165, 172 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013)). We look to whether the parties still have a “concrete interest, however
small, in the outcome of the litigation.” Id. at 172 (quoting Knox v. Serv. Emps.
Int’l Union, 567 U.S. 298, 307 (2012)). If it has become impossible for us to grant
“any effectual relief whatever,” then the case has become moot. Knox, 567 U.S. at
307 (quoting Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)); see also Am.
1
The shipment of plutonium had taken place when Nevada moved for the
preliminary injunction. Thus, Nevada likely lacked standing to request the
preliminary injunctive relief it sought below. But even “preliminarily” assuming
standing, this appeal is clearly moot. See Arizonans, 520 U.S. at 66 (following the
established practice of assuming standing to analyze mootness “as a preliminary
matter”).
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Tunaboat Ass’n v. Brown, 67 F.3d 1404, 1407 (9th Cir. 1995) (“We cannot take
jurisdiction over a claim as to which no relief can be granted.”).
Here, the shipment of plutonium from South Carolina to Nevada was the
“target” of the preliminary injunction, and that shipment took place before this
lawsuit was even filed. The remedy Nevada sought—stopping the government
from shipping plutonium from South Carolina to Nevada under the proposed
action—is no longer available.
Contrary to Nevada’s argument, this is not a case that has become moot
because of the government’s “voluntary cessation” of the challenged conduct. See
Laidlaw, 528 U.S. at 174 (“A defendant’s voluntary cessation of allegedly
unlawful conduct ordinarily does not suffice to moot a case.”). Rather, the
government completed the shipment from South Carolina to the NNSS. See
DeFunis, 416 U.S. at 318 (holding that the “voluntary cessation” exception to
mootness did not apply since mootness resulted from the fact the alleged injury
was no longer redressable, not because the defendant choose to stop the allegedly
illegal conduct); see also In Def. of Animals v. U.S. Dep’t of Int., 648 F.3d 1012,
1013 (9th Cir. 2011) (per curiam) (holding preliminary injunction appeal moot
where action to be enjoined had taken place). Here, as in Defense of Animals, “the
parties no longer have a legally cognizable interest in the determination of whether
the preliminary injunction was properly denied.” Id. (quoting Animal Legal Def.
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Fund v. Shalala, 53 F.3d 363 (D.C. Cir. 1995)).
We also disagree with Nevada’s contention that the appeal is not moot
because the district court could order the government to remove the plutonium that
it already shipped to the NNSS. Nevada did not seek removal of the plutonium in
its motion for a preliminary injunction. Because the government completed the
shipment, any harm caused by the shipment cannot be “undone” by granting the
motion Nevada actually filed. Am. Horse Prot. Ass’n, Inc. v. Watt, 679 F.2d 150,
151 (9th Cir. 1982) (per curiam). The appeal of the denial of the preliminary
injunction is moot.
APPEAL DISMISSED.
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