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 2019-08

Earth Island Institute v. Kevin Elliott ( 2019 )


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  •                                                                             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NOT FOR PUBLICATION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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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.
1
Earth Island’s motion to take judicial notice of court documents filed in
related cases (Docket Entry No. 36) is GRANTED.
2