Native Village of Nuiqsut v. Bureau of Land Management

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE VILLAGE OF NUIQSUT ;
ALASKA W ILDERNESS LEAGUE ;
FRIENDS OF THE EARTH; NATURAL
RESOURCES DEFENSE COUNCIL ;
SIERRA CLUB,
Plaintiffs-Appellants,
and
CENTER FOR BIOLOGICAL DIVERSITY ,
Plaintiff,
v.
BUREAU OF LAND M ANAGEMENT ;
DEBRA HAALAND ,* in her official
capacity as Secretary of the Interior;
CHAD P ADGETT , in his official
capacity as Alaska State Director of
the Bureau of Land Management;
NICHELLE JONES , in her official
capacity as District Manager of the
No. 20-35224
D.C. No.
3:19-cv-00056-
SLG
OPINION
* Debra Haaland has been substituted for her predecessor, David
Bernhardt, as the Secretary of the Interior pursuant to Federal Rule of
Appellate Procedure 43(c)(2).

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2 NATIVE VILLAGE OF NUIQSUT V . BLM
Bureau of Land Management Arctic
District Office,
Defendants-Appellees,
CONOCO PHILLIPS ALASKA , I NC.,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted July 28, 2021
Pasadena, California
Filed August 24, 2021
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and EDUARDO C. ROBRENO,**
District Judge.
Opinion by Judge Milan D. Smith, Jr.
** The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

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NATIVE VILLAGE OF NUIQSUT V . BLM 3
SUMMARY***
Environmental Law / Mootness
The panel vacated as moot the district court’s judgment
in an action challenging the Bureau of Land Management’s
(“BLM”) approval of a winter drilling exploration program
for ConocoPhillips Alaska, Inc. in the National Petroleum
Reserve-Alaska.
In November 2012, the BLM published the 2012
Integrated Action Plan/Environmental Impact Statement
(“IAP/EIS”), a document that analyzed environmental
impacts in much of the Petroleum Reserve. In 2014,
ConocoPhillips sought permission to construct a drill pad in
the Greater Mooses Tooth (“GMT”) Unit located within the
Petroleum Reserve. The BLM approved the request, and
issued a GMT supplemental EIS that relied on the analysis
in the 2012 IAP/EIS. In 2018, ConocoPhillips sought
permission to construct another drill pad in the GMT Unit.
The BLM approved the request and issued a second GMT
supplemental EIS, which also referenced the 2012 IAP/EIS.
In 2018, ConocoPhillips applied to drill in the Bear Tooth
Unit, and the BLM published an environmental assessment
(“EA”) and did not subsequently issue an EIS. This 2018
EA purportedly incorporated the 2012 IAP/EIS and the two
GMT supplemental EISs. BLM issued a finding of no new
significant impact for ConocoPhillips’s 2018-2019 winter
exploration program. ConocoPhillips completed the
program on April 28. 2019. On March 1, 2019, before
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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4 NATIVE VILLAGE OF NUIQSUT V . BLM
completion of the program, plaintiffs brought this action
alleging violations of the Administrative Procedure Act, the
National Environmental Policy Act (“NEPA”), and the
Alaska National Interest Lands Conservation Act. The
district court concluded the action was not moot, and granted
defendants’ motion for summary judgment on each of the
substantive claims.
The panel held that the case was moot because neither
the district court nor this court could give any relief to
plaintiffs, where ConocoPhillips fully completed the
operations of the 2018-2019 winter exploration program, the
only lasting physical features of the drilling were capped
wells, and there was no indication that ConocoPhillips could
undo the drilling of those wells.
Plaintiffs contend that the “capable of repetition, yet
evading review” exception to mootness applied. This
exception has two requirements: (1) the duration of the
challenged action is too short to allow full litigation before
it ceases or expires, and (2) there is a reasonable expectation
that the plaintiffs will be subjected to the challenged action
again.
The plaintiffs’ challenge to the 2018 environmental
assessment met the durational requirement where the 2018-
2019 winter exploration program lasted only five months.
The panel next considered the “capable of repetition”
prong of the mootness exception. The panel noted that
generally a case will not be moot when the environmental
report at issue will be used by the agency in approving a
future project. This case, however, is more complicated.
While the 2018 EA was confined solely to the 2018-2019
winter exploration program, and the BLM would not use that

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NATIVE VILLAGE OF NUIQSUT V . BLM 5
particular EA in approving a future drilling exploration
request, the 2018 EA relied on the 2012 IAP/EIS, and the
two GMT supplemental EISs. At the time of the district
court decision, the BLM’s continued reliance on the 2012
IAP/EIS, and the two GMT supplemental EISs in future EAs
meant that the case was “capable of repetition, yet evading
review.”
The panel held, however, that new circumstances have
arisen subsequent to the district court’s decision, and the
case is now moot. First, the legal landscape has changed.
The Council of Environmental Quality issued new
regulations implementing NEPA (“2020 Rule”), which
supplanted the regulations at the time plaintiffs brought their
suit. In January 2021, the President signed Executive Order
13990 directing review of the 2020 Rule, and it is unclear
whether future challenges would be adjudicated pursuant to
the old or the new regulations. The panel held that the new
regulations would render the case moot because there was
no reasonable expectation that the plaintiffs would be
subjected to the challenged action again. Second, in 2020,
the BLM issued a new IAP/EIS for the Petroleum Reserve,
and plaintiffs have not shown a “reasonable expectation”
that they will be subjected to an EA tiering to the 2012
IAP/EIS again. Third, BLM represents that it is continuing
to tier environmental reports to the second GMT
supplemental EIS, which would likely allow plaintiffs to
contend that their claims were “capable of repetition.” The
panel held, however, that BLM could not tier to either GMT
supplemental EIS for a document similar to the 2018 EA
because they cover entirely separate development-stage
projects and do not address exploration activities. Whether
BLM applies the old regulations, or the new regulations,
plaintiffs’ particular claims no longer fit into the “capable of
repetition, yet evading review” exception to mootness.

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6 NATIVE VILLAGE OF NUIQSUT V . BLM
Fourth, ConocoPhillips states that it does not plan to conduct
additional winter exploration in the area for the foreseeable
future. Standing alone, the declaration did not satisfy the
heavy burden to show that voluntary cessation mooted the
case. The panel held, however, that the declaration must be
considered when combined with the other circumstances
noted above.
The panel concluded that this was a unique case where
mootness was not based on a single factor, but instead on a
multitude of new circumstances, which, together, showed
that the “capable of repetition, yet evading review” mootness
exception did not apply.
Because the case is moot, the district court and the Ninth
Circuit are without jurisdiction to decide the case. The panel
held that it did not have jurisdiction to consider the merits of
plaintiffs’ claims, vacated the district court’s decision, and
remanded with instructions to dismiss the case as moot.
COUNSEL
Jeremy Lieb (argued) and Rebecca Noblin, Earthjustice,
Anchorage, Alaska; Eric P. Jorgensen, Earthjustice, Juneau,
Alaska; Garett R. Rose, Natural Resources Defense Council,
Washington, D.C.; for Plaintiff-Appellant.
Amelia G. Yowell (argued) and Andrew C. Mergen,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jean E. Williams, Principal Deputy Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.;
Michael Gieryic, Attorney-Advisor, Office of the Solicitor,

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NATIVE VILLAGE OF NUIQSUT V . BLM 7
United States Department of the Interior, Washington, D.C.;
for Defendants-Appellees.
Jason T. Morgan (argued) and Ryan P. Steen, Stoel Rives
LLP, Seattle, Washington, for Intervenor-Defendant-
Appellee.
OPINION
M. SMITH, Circuit Judge:
In 2018, the Bureau of Land Management (BLM)
approved a winter drilling exploration program for
ConocoPhillips Alaska, Inc. (ConocoPhillips) in the
National Petroleum Reserve-Alaska (Petroleum Reserve).
In connection with its approval of ConocoPhillips’s
exploration program, the BLM issued an environmental
assessment (EA), which relied, in part, on the 2012
Integrated Action Plan/Environmental Impact Statement
(IAP/EIS), a document that analyzed environmental impacts
in a larger portion of the Petroleum Reserve. The Native
Village of Nuiqsut and other plaintiffs (collectively,
Plaintiffs) brought suit against the BLM, claiming that the
agency violated the Administrative Procedure Act (APA),
the National Environmental Policy Act (NEPA), and the
Alaska National Interest Lands Conservation Act
(ANILCA) when it approved the referenced winter drilling
exploration program. ConocoPhillips intervened in the
dispute. The district court decided that, although the dispute
was no longer live, it fit into the “capable of repetition, yet
evading review” mootness exception, and decided the case
on the merits. See Wildwest Inst. v. Kurth, 855 F.3d 995,
1002–03 (9th Cir. 2017) (internal quotation marks omitted).

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In most NEPA cases, the “capable of repetition” inquiry
focuses on whether the agency will be relying on the same
environmental report in the future, or will utilize a new
report or a new method in approving future actions. This
case is unique in that a multitude of factors convince us that
Plaintiffs’ claims are not capable of repetition. The BLM
has promulgated a new IAP/EIS for the Petroleum Reserve,
and the Council on Environmental Quality (CEQ) has
revised the regulations implementing NEPA. The
Department of the Interior is currently reviewing those
actions. Notwithstanding that ongoing review, the new
IAP/EIS and NEPA regulations, when combined with the
BLM’s improper reliance on a supplemental EIS and
ConocoPhillips’s declaration that it will not pursue
exploratory drilling in the near future, mean that the “capable
of repetition, yet evading review” exception no longer
applies to Plaintiffs’ claims. Therefore, discharging our
ongoing duty to be certain that we have subject matter
jurisdiction, we vacate the district court’s decision, and
remand with instructions to dismiss the case as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Petroleum Reserve is “the largest single unit of
public land in the United States and covers 23.6 million
acres.” N. Alaska Env’t Ctr. v. Kempthorne, 457 F.3d 969,
973 (9th Cir. 2006). In 1980, “Congress . . . directed the
Secretary [of the Interior] to carry out an expeditious
program of competitive leasing of oil and gas on the
Reserve.” Id. (internal quotation marks omitted). Congress
has also directed that oil and gas leasing in areas of the
Petroleum Reserve “containing any significant subsistence,
recreational, fish, and wildlife, or historical or scenic value[]
shall be conducted in a manner which will assure the
maximum protection of such surface values to the extent

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NATIVE VILLAGE OF NUIQSUT V . BLM 9
consistent with the requirements of” the National Petroleum
Reserve Protection Act (NPRA) “for the exploration of the
reserve.” 42 U.S.C. § 6504(a). One of the areas protected
by the NPRA is the Teshekpuk Lake Special Area. See id.
In November 2012, the BLM published the 2012
IAP/EIS.1 The 2012 IAP/EIS is a comprehensive and
programmatic document that analyzes environmental
impacts in much of the Petroleum Reserve and, in its chosen
course of action, made “approximately 11.8 million acres . . .
(nearly 52 percent of the total in the [Petroleum Reserve])
available for oil and gas leasing.” Pertinent to this appeal,
the 2012 IAP/EIS kept most of the Teshekpuk Lake Special
Area closed for oil and gas exploration, but made “lands in
the eastern-most part of the [area] available.” The 2012
IAP/EIS noted that “[t]hese lands, which have valuable
waterfowl and caribou habitat, also include or are close to
existing leases, including those with oil discoveries in the
Greater Mooses Tooth Unit.”
The Greater Mooses Tooth (GMT) Unit is located within
the Petroleum Reserve. In 2014, ConocoPhillips sought
permission to construct a drill pad in the GMT Unit. The
BLM approved the request and, in doing so, issued a
supplemental EIS (GMT1 SEIS). The GMT1 SEIS “tier[ed]
to” the 2012 IAP/EIS, meaning it relied on the analysis in
the 2012 document. See 40 C.F.R § 1502.20 (2019).2 In
1 A number of documents we reference were published by the BLM
in one year, with the formal record of decision (ROD) being issued the
following year, such as the 2012 IAP/EIS, where the ROD was issued in
2013. We refer to the documents by the year that the BLM published the
reports, rather than the year the ROD was issued.
2 As discussed below, the CEQ issued new NEPA regulations that
took effect on September 14, 2020. See Update to the Regulations

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10 NATIVE VILLAGE OF NUIQSUT V . BLM
2018, ConocoPhillips sought permission to construct
another drill pad in the GMT Unit. The BLM approved this
request as well and issued another supplemental EIS (GMT2
SEIS). The GMT2 SEIS also tiered to the 2012 IAP/EIS.
Both the GMT1 SEIS and GMT2 SEIS additionally
“incorporate[d] . . . by reference” the 2012 IAP/EIS. See
40 C.F.R § 1502.21 (2019).
In 2018, ConocoPhillips applied to drill exploratory
wells in the Bear Tooth Unit, west of Nuiqsut and the GMT
Unit. The BLM published an EA and did not subsequently
issue an EIS. An agency can “first prepare[] an EA to
determine whether an action will have a significant impact,”
and, “[i]f the agency concludes there is no significant effect
associated with the proposed project, it may issue a [finding
of no significant impact] in lieu of preparing an EIS.” Env’t
Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009
(9th Cir. 2006). Regulations also allowed the BLM to not
issue an EIS if it made a “finding of no new significant
impact,” or FONNSI. 43 C.F.R. § 46.140(c) (emphasis
added) (internal quotation marks omitted). The 2018 EA
purportedly tiered to, or incorporated by reference, the 2012
IAP/EIS, the GMT1 SEIS, and the GMT2 SEIS. Along with
the final EA, the BLM issued a FONNSI for
ConocoPhillips’s 2018–2019 winter exploration program
and did not subsequently issue a supplemental EIS for the
program. The BLM also published an ANILCA evaluation
to approve the winter drilling exploration program. After
receiving approval, ConocoPhillips carried out the program,
which included building ice pads, an ice airstrip, ice roads,
Implementing the Procedural Provisions of the National Environmental
Policy Act (Update to NEPA Regulations), 85 Fed. Reg. 43,304 (July 16,
2020). We refer to the regulations in place at the time Plaintiffs’ filed
their suit as the 2019 regulations.

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NATIVE VILLAGE OF NUIQSUT V . BLM 11
and six new wells. ConocoPhillips completed the 2018–
2019 winter exploration on April 28, 2019.
On March 1, 2019, before the completion of the program,
Plaintiffs brought suit against the BLM, alleging violations
of the APA, NEPA, and ANILCA. Plaintiffs’ claims
centered on the 2018 EA’s explanations for impacts on
caribou and subsistence, and the BLM’s consideration of
alternatives to ConocoPhillips’s proposal. The district court
granted ConocoPhillips’s motion to intervene. The BLM
and ConocoPhillips (collectively, Defendants) and Plaintiffs
filed cross-motions for summary judgment.
The district court issued its decision in January 2020.
See Native Village of Nuiqsut v. Bureau of Land Mgmt.,
432 F. Supp. 3d 1003 (D. Alaska 2020). The district court
held that the case fit into the “‘capable of repetition yet
evading review’ exception to the mootness doctrine.” Id.
at 1021–23. The court first held that the time period for the
exploration program, “a period of only five months,” was
“precisely the sort of short-term action that evades judicial
review.” Id. at 1021–22. Additionally, the district court
wrote that Plaintiffs did not need to ask for a preliminary
injunction to avoid mootness. See id. at 1022 n.112 (citing
Greenpeace Action v. Franklin, 14 F.3d 1324, 1330 (9th Cir.
1992)).
Next, the district court noted that “ConocoPhillips ha[d]
since proposed winter exploration for 2019–2020 in the
same area as the 2018–2019 exploration at issue in this case,
and that [the] BLM ha[d] again completed an EA to review
impacts of the proposed activity.” Id. at 1022 (footnote
omitted). Additionally, the court stated that “while the 2018
EA and the exploration it authorized cannot themselves be
repeated,” the court found “it quite likely that [the] BLM will
authorize future winter exploration in the Teshekpuk Lake

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12 NATIVE VILLAGE OF NUIQSUT V . BLM
Area using an EA that tiers to the 2012 IAP/EIS and the
GMT1 and GMT2 SEISs to support conclusions regarding
impacts to caribou and subsistence uses.” Id. at 1023. Thus,
the district court concluded that the dispute was “capable of
repetition yet evading review.” Id. (citing Greenpeace
Action, 14 F.3d at 1330).
After concluding that the case was not moot, the district
court granted Defendants’ motion for summary judgment for
each of the substantive claims. See id. at 1026–46. Plaintiffs
appeal the district court’s ruling on the merits, and
Defendants renew their argument that the case is moot.3
II. STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s pronouncements on mootness de
novo. Am. Diabetes Ass’n v. U.S. Dep’t of the Army,
938 F.3d 1147, 1151 (9th Cir. 2019).
III. ANALYSIS
“The case or controversy requirement of Article III . . .
deprives federal courts of jurisdiction to hear moot cases.”
N.A.A.C.P., W. Region v. City of Richmond, 743 F.2d 1346,
1352 (9th Cir. 1984). “A case becomes moot only when it
is impossible for a court to grant any effectual relief
3 The district court also held that most, but not all, Plaintiffs had
standing. See Nuiqsut, 432 F. Supp. 3d at 1017–21. Defendants do not
dispute the standing analysis, but Plaintiffs claim that the district court
erred in deciding that Friends of the Earth did not have standing. See id.
at 1019 n.92. Because we ultimately vacate the district court’s decision
and remand with instructions to dismiss the case as moot, we need not
reach the issue of the Friends of the Earth’s standing. See Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180
(2000).

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NATIVE VILLAGE OF NUIQSUT V . BLM 13
whatever to the prevailing party.” Knox v. Serv. Emps. Int’l
Union, Loc. 1000, 567 U.S. 298, 307 (2012) (internal
quotation marks omitted).
“[D]efendants in NEPA cases face a particularly heavy
burden in establishing mootness.” Cantrell v. City of Long
Beach, 241 F.3d 674, 678 (9th Cir. 2001). This is because
“if the completion of the action challenged under NEPA is
sufficient to render the case nonjusticiable, entities could
merely ignore the requirements of NEPA, build its structures
before a case gets to court, and then hide behind the
mootness doctrine.” Id. (internal quotation marks omitted).
In Cantrell, “destruction of the historic buildings on the
Naval Station [could not] be remedied,” but we nonetheless
determined that, “if required to undertake additional
environmental review, the defendants could consider
alternatives to the current reuse plan, and develop ways to
mitigate the damage to the birds’ habitat.” Id. at 678–79.
“Since effective relief [was possibly] still . . . available, the
demolition of the Naval Station was insufficient to render the
case moot.” Id. at 679.
In this case, as the district court noted, “ConocoPhillips
fully completed the operations” of the 2018–2019 winter
exploration program “on April 28, 2019.” Nuiqsut, 432 F.
Supp. 3d at 1014. ConocoPhillips informs us: “All
equipment has been demobilized. The authorized ice roads
and ice pads have melted. The exploration and appraisal
wells have been capped. No structures remain in the Winter
Program area.” Plaintiffs do not dispute the accuracy of
these statements.
Unlike in Cantrell, where the district court could still
order relief, here there is no relief we can provide Plaintiffs.
The only lasting physical features of the 2018–2019

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14 NATIVE VILLAGE OF NUIQSUT V . BLM
exploratory drilling are the capped wells, but there is no
indication that ConocoPhillips could undo the drilling of
those wells. See Sierra Club v. Penfold, 857 F.2d 1307, 1318
(9th Cir. 1988) (“The impacts of the Plan mines are not
remediable since we cannot order that the Plans be
‘unmined.’”); cf. West v. Sec’y of Dep’t of Transp., 206 F.3d
920, 925 (9th Cir. 2000) (holding that the case was not moot
because “our remedial powers would include remanding for
additional environmental review and, conceivably, ordering
the interchange closed or taken down”). Because neither we
nor the district court could give any relief to Plaintiffs, the
case is technically moot.
Plaintiffs implicitly acknowledge that the case is moot
by arguing that the issues are “capable of repetition, yet
evading review,” an exception to mootness. Wildwest Inst.,
855 F.3d at 1002 (internal quotation marks omitted). This
exception has two requirements: “(1) the duration of the
challenged action is too short to allow full litigation before
it ceases or expires, and (2) there is a reasonable expectation
that the plaintiffs will be subjected to the challenged action
again.” Id. at 1002–03 (internal quotation marks omitted).
Unlike the initial mootness question, where the defendants
have the burden, see Cantrell, 241 F.3d at 678, “[u]nder the
‘capable of repetition’ prong of the exception to the
mootness doctrine, the plaintiffs have the burden of showing
that there is a reasonable expectation that they will once
again be subjected to the challenged activity,” Lee v.
Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985)
(emphasis added).
A. Duration of the Challenged Action
As to the first requirement, the 2018–2019 winter
exploration program lasted only five months. See Nuiqsut,
432 F. Supp. 3d at 1021. ConocoPhillips completed its

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NATIVE VILLAGE OF NUIQSUT V . BLM 15
exploration in a time period that was “too short to allow full
litigation before [the project] cease[d].” Wildwest Inst.,
855 F.3d at 1003 (internal quotation marks omitted); see
Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006,
1018 (9th Cir. 2012) (“We have repeatedly held that [mining
activity] lasting only one or two years evade[s] review.”).
Defendants argue that Plaintiffs’ failure to ask for a
preliminary injunction means that the case is moot.
However, even if ConocoPhillips’s winter exploration
program “could have been enjoined” for the final month of
the program, the 2018–2019 winter “season has ended and
the” 2018 EA has effectively “expired.” Greenpeace Action,
14 F.3d at 1329–30. “No injunction could have preserved
this challenge to a short-term” and project-specific
environmental report, like the 2018 EA. Id. at 1330.
Therefore, Plaintiffs’ challenge to the 2018 EA fulfills the
first requirement of the “capable of repetition, yet evading
review” exception.
B. Reasonable Expectation of Repetition
In most NEPA cases, the inquiry for the “capable of
repetition” prong of the mootness exception is relatively
simple. Our precedent has focused on whether the
environmental report at issue is confined to the challenged
action only, or whether the agency will use that same report
in approving a future project. If the latter is true, then the
case is not moot. See id. (holding that the case was not moot
because the Secretary of Commerce “ha[d] relied on the
same biological opinion” for both the challenged action and
a subsequent action). In contrast, when the environmental
report at issue “has been superseded, and the federal
agencies will rely” on a new and different report “for the near
future,” the case is moot. Idaho Dep’t of Fish & Game v.
Nat’l Marine Fisheries Serv., 56 F.3d 1071, 1075 (9th Cir.

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16 NATIVE VILLAGE OF NUIQSUT V . BLM
1995). Similarly, when an agency “rel[ies] on the same
biological opinion” but “us[es] a different method of
calculating” the final course of action in future
environmental reports, the case is moot. Ramsey v. Kantor,
96 F.3d 434, 446 (9th Cir. 1996).
This case is a bit more complicated. The 2018 EA is
confined solely to ConocoPhillips’s 2018–2019 winter
exploration program. The BLM would not use that
particular EA in approving a future drilling exploration
request. However, the 2018 EA relied on the 2012 IAP/EIS,
GMT1 SEIS, and GMT2 SEIS, purportedly either by tiering
to those reports or incorporating them by reference. See
Nuiqsut, 432 F. Supp. 3d at 1014, 1025 n.141. The ANILCA
analysis also relied on the GMT1 SEIS and GMT2 SEIS. At
the time the district court decided this case, the BLM’s
continued reliance on the 2012 IAP/EIS, GMT1 SEIS, and
GMT2 SEIS in future EAs meant that the case was “capable
of repetition, yet evading review.” See id. at 1023. Because
the 2018 EA borrowed so much analysis from those previous
EISs, the BLM would in effect be “rel[ying] on the same
biological opinion[s]” for future environmental reports. See
Greenpeace Action, 14 F.3d at 1330.
However, our duty to examine mootness is an ongoing
obligation. “[A]n ‘actual controversy’ must exist not only
‘at the time the complaint is filed,’ but through ‘all stages’
of the litigation.” Already, LLC v. Nike, Inc., 568 U.S. 85,
90–91 (2013) (citation omitted). “A case that becomes moot
at any point during the proceedings,” including during an
appeal, “is no longer a ‘Case’ or ‘Controversy’ for purposes
of Article III, and is outside the jurisdiction of the federal
courts.” United States v. Sanchez-Gomez, 138 S. Ct. 1532,
1537 (2018) (some internal quotation marks omitted).

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NATIVE VILLAGE OF NUIQSUT V . BLM 17
New circumstances have arisen since the district court’s
disposition that convince us that the case is now moot. When
viewed holistically, these new circumstances show that there
is not a reasonable “probability that the challenged action
will affect [Plaintiffs] in the future.” Biodiversity Legal
Found. v. Badgley, 309 F.3d 1166, 1174 (9th Cir. 2002).
1. New Regulations
First, the legal landscape has changed. The CEQ issued
new regulations implementing NEPA, which supplanted the
regulations in force at the time Plaintiffs brought their suit.
Update to NEPA Regulations, 85 Fed. Reg. 43,304 (July 16,
2020) (2020 Rule). “The effective date” for these new
regulations was “September 14, 2020,” id. at 43,304, after
Plaintiffs filed suit in March 2019, and after the district court
rendered its decision in January 2020. In its answering brief,
the BLM stated that it “would analyze any future exploration
activities under” these new regulations and not the old
regulations that “it applied in the 2018 EA.”
However, this past January, the President signed
Executive Order 13990, which “directs Federal agencies to
review Federal agency actions taken between January 20,
2017, and January 20, 2021, including the promulgation of
regulations,” and “specifically identifies the 2020 Rule as
among the actions to be reviewed.” Deadline for Agencies
to Propose Updates to National Environmental Policy Act
Procedures (Deadline for NEPA Proposals), 86 Fed. Reg.
34,154, 34,155 (June 29, 2021); see also Proclamation No.
13,990, 86 Fed. Reg. 7,037 (Jan. 20, 2021). Subsequently,
the CEQ “beg[a]n its review of the 2020 Rule,” noting that
it has “substantial concerns” about the new regulations.
Deadline for NEPA Proposals, 86 Fed. Reg. at 34,155. The
CEQ “extend[ed] the deadline by two years for Federal
agencies to develop or revise proposed procedures for

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18 NATIVE VILLAGE OF NUIQSUT V . BLM
implementing the procedural provisions of” NEPA. Id.
at 34,154.
The Secretary of the Interior, in turn, issued an order
mandating that the Department of the Interior’s bureaus and
offices, including the BLM, “not apply the 2020 Rule in a
manner that would change the application or level of NEPA
that would have been applied to a proposed action before the
2020 Rule went into effect on September 14, 2020.”
Secretary of the Interior Order No. 3399, 2021 WL 1584759,
at *3 (Apr. 16, 2021). The BLM informs us that it
“anticipates performing the same level of NEPA analysis
contemplated by the regulations in effect prior to 2020.” It
is unclear whether the BLM “performing the same level of
NEPA analysis” amounts to use of the old regulations or the
new regulations. Moreover, the Secretary of the Interior’s
order only forbids the BLM from using the new regulations
“in a manner that would change the application or level of
NEPA that would have been applied to a proposed action
before the 2020 Rule.” Id. The Secretary of the Interior’s
order does not necessarily require that the BLM use the old
regulations. Thus, it is unclear whether future challenges
would be adjudicated pursuant to the old or the new
regulations.
If the BLM uses the new regulations, the 2020 Rule
creates new directives that would affect Plaintiffs’ claims.
See, e.g., 40 C.F.R. § 1501.3 (providing instructions for how
an agency should decide to issue an EIS or EA); id. § 1501.5
(providing instructions for preparing and issuing EAs). The
2020 Rule also replaces the old regulations with new ones in
ways that would directly impact Plaintiffs’ suit. Compare
40 C.F.R. § 1501.11 (tiering), and 40 C.F.R. § 1501.12
(incorporation by reference), with 40 C.F.R. § 1502.20
(2019) (tiering), and 40 C.F.R. § 1502.21 (2019)

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NATIVE VILLAGE OF NUIQSUT V . BLM 19
(incorporation by reference). The changes to the regulations
mean that the BLM would employ a “different method” for
approving future exploration projects. Ramsey, 96 F.3d
at 446. These new regulations render the case moot because
there is no “reasonable expectation that the plaintiffs will be
subjected to the challenged action again,” Wildwest Inst.,
855 F.3d at 1003 (internal quotation marks omitted), with the
same “method of calculating” environmental impacts,
Ramsey, 96 F.3d at 446.
However, with the uncertainty surrounding
implementation of the new regulations, we must also
examine whether the case is moot if the BLM continues to
rely on the old regulations. Based on the factors discussed
below, even using the old regulations, the case is still moot.4
2. New Integrated Activity Plan/Environmental
Impact Statement
The 2018 EA relied heavily on the 2012 IAP/EIS for its
analysis. For example, in analyzing the impact on caribou,
the 2018 EA provided only a brief discussion. The 2012
IAP/EIS, to which the 2018 EA tiered, had substantially
more analysis about the impact on caribou for hypothetical
drilling programs pursuant to different courses of action. On
the merits, Plaintiffs argue that the analysis from the 2012
IAP/EIS is inadequate for the 2018 EA because the 2012
IAP/EIS “is a broad-scale zoning and land management plan
for the entire [Petroleum] Reserve that explicitly states that
4 There are no corresponding new regulations implementing Section
810 of ANILCA, which is codified at 16 U.S.C. § 3120. However, the
ANILCA analyses relied only on the GMT1 SEIS and GMT2 SEIS. For
the reasons noted below, the ANILCA claim is moot despite the absence
of new regulations.

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20 NATIVE VILLAGE OF NUIQSUT V . BLM
site-specific analysis will be required when exploration
activities are permitted.”
We need not decide whether the 2018 EA could tier to
the 2012 IAP/EIS because in 2020 the BLM issued a new
IAP/EIS for the Petroleum Reserve. The BLM states that
because it “has adopted the 2020 IAP/EIS, the agency will
tier to it instead of the 2012 IAP/EIS when preparing” future
EAs. The BLM notes that it has already tiered to the 2020
IAP/EIS in a recent EA. Because the BLM is now relying
on an entirely different IAP/EIS it is no longer “likely that
additional NEPA analyses for future exploration in the
[Petroleum Reserve] will tier to and rely on the 2012
IAP/EIS.” Nuiqsut, 432 F. Supp. 3d at 1023. The 2012
IAP/EIS “has been superseded” and the BLM will likely tier
future EAs to the 2020 IAP/EIS. Idaho, 56 F.3d at 1075.
We say “likely” because, as with the 2020 Rule, the
status of the 2020 IAP/EIS is in flux. The BLM issued the
2020 IAP/EIS on June 26, 2020. Notice of Availability of
the National Petroleum Reserve in Alaska Integrated
Activity Plan Final Environmental Impact Statement,
85 Fed. Reg. 38,388 (June 26, 2020). The BLM issued its
ROD on December 31, 2020. U.S. Dep’t of Interior, Bureau
of Land Mgmt., National Petroleum Reserve in Alaska:
Integrated Activity Plan Record of Decision (Dec. 2020),
https://eplanning.blm.gov/public_projects/117408/2002842
63/20032151/250038350/NPR-
A%20IAP%20Record%20of%20Decision.pdf. The BLM
advises that the Department of the Interior “is currently
reviewing the 2020 IAP/EIS and ROD” and “estimates that
it will complete its review by September 7, 2021.” “In the
meantime,” the BLM states, “the 2020 IAP/EIS remains in
effect.” During oral argument, the BLM’s counsel further
explained that even when the Department of the Interior

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NATIVE VILLAGE OF NUIQSUT V . BLM 21
completes its review in September 2021, it will not
necessarily simply adopt the 2020 IAP/EIS or re-promulgate
the 2012 IAP/EIS. The process for revising the 2020
IAP/EIS or adopting a new IAP/EIS could take months or
years.
With the 2020 IAP/EIS still technically binding the
BLM, Plaintiffs have not met their burden in showing a
“reasonable expectation that [they] will be subjected” to an
EA tiering to the 2012 IAP/EIS again. Wildwest Inst.,
855 F.3d at 1003 (internal quotation marks omitted).
3. Reliance on GMT2 Supplemental Environmental
Impact Statement
The 2018 EA also purportedly tiered to the GMT1 SEIS
and GMT2 SEIS. The BLM represents that it is continuing
to tier environmental reports to the GMT2 SEIS.5 Continued
reliance on the GMT2 SEIS would likely allow Plaintiffs to
show that their claims were “capable of repetition,” as the
district court relied, in part, on future tiering to the GMT2
SEIS to determine that the case adhered to the mootness
exception. See Nuiqsut, 432 F. Supp. 3d at 1023.
Plaintiffs argue that the BLM could not tier to the GMT1
SEIS or GMT2 SEIS because they “cover entirely separate
development-stage projects and do not address exploration
5 The BLM has not stated whether it will continue to tier to the
GMT1 SEIS. However, future reliance on the GMT1 SEIS does not
affect the issue of mootness in this case. If the BLM does attempt to tier
to the GMT1 SEIS in the future, then the case is moot for the same
reasons as pertain to the GMT2 SEIS. If the BLM does not attempt to
tier to the GMT1 SEIS for future environmental reports, then the case is
moot for the same reasons that pertain to the 2020 IAP/EIS replacing the
2012 IAP/EIS.

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22 NATIVE VILLAGE OF NUIQSUT V . BLM
activities, let alone activities conducted in the [2018–2019
winter] Exploration Program area.” Quoting 40 C.F.R
§§ 1502.20 and 1508.28 (2019), the BLM contends that
“[n]othing prohibits [the agency] from tiering to the SEISs”
and that “tiering a ‘lesser scope’ EA to those SEISs . . .
aligns with the regulation’s encouragement to tier ‘to
eliminate repetitive discussions of the same issues.’”6
We agree with Plaintiffs. Pursuant to the old NEPA
regulations, the BLM could not tier the 2018 EA to the
GMT2 SEIS. The regulations in force at the time the BLM
issued the 2018 EA provided that “[w]henever a broad
environmental impact statement has been prepared . . . and a
subsequent statement or environmental assessment is then
prepared on an action included within the entire program or
policy (such as a site specific action),” the site-specific EA
could tier to the programmatic EIS. 40 C.F.R. § 1502.20
(2019). Another regulation afforded the BLM the ability to
tier either: (1) “[f]rom a program, plan, or policy
environmental impact statement to a program, plan, or policy
statement or analysis of lesser scope or to a site-specific
statement or analysis”; or (2) “[f]rom an environmental
impact statement on a specific action at an early stage (such
as need and site selection) to a supplement (which is
preferred) or a subsequent statement or analysis at a later
6 Defendants also argue that Plaintiffs waived the argument
concerning tiering to the GMT1 SEIS and GMT2 SEIS because Plaintiffs
did not raise it in the district court. The parties discuss tiering to the
GMT1 SEIS and GMT2 SEIS in the merits sections of their briefs.
Because we must decide the issue of tiering to the SEISs as it pertains to
mootness—a jurisdictional issue—we can raise the issue sua sponte. See
Bernhardt v. County of L.A., 279 F.3d 862, 871 (9th Cir. 2002) (“[W]e
must raise issues concerning our subject matter jurisdiction sua sponte.
This includes mootness.” (citation omitted)).

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NATIVE VILLAGE OF NUIQSUT V . BLM 23
stage (such as environmental mitigation).” Id. § 1508.28(a)–
(b) (2019).
“We have never held that the analysis of similar effects
for a separate project excuses the failure to consider
significant environmental impacts in an EIS. Though
‘tiering’ to a previous EIS is sometimes permissible, the
previous document must actually discuss the impacts of the
project at issue.” S. Fork Band Council of W. Shoshone of
Nev. v. U.S. Dep’t of Interior, 588 F.3d 718, 726 (9th Cir.
2009). While South Fork Band Council concerned tiering
from one EIS to another EIS, we recently stated that tiering
applies to “subsequent EISs or EAs,” and involves a process
“which concentrate[s] on issues specific to the current
proposal” that were analyzed in “previous broader EISs that
cover matters more general in nature.” N. Alaska Env’t Ctr.
v. U.S. Dep’t of the Interior, 983 F.3d 1077, 1090 (9th Cir.
2020) (emphasis added) (citing 40 C.F.R. § 1508.28 (2019)).
In Northern Alaska Environmental Center, we were “not
aware of anything that would prevent an agency from
performing the analysis required by the tiering regulations in
a document styled as a supplement to a previous NEPA
analysis,” id. at 1093 n.15, but that case concerned whether
the BLM had a prepare a narrower EA under the umbrella of
the broad, programmatic 2012 IAP/EIS, see id. at 1085.
As confirmed in Northern Alaska Environmental Center,
the 2012 IAP/EIS was a broad document covering much of
the Petroleum Reserve, including the area in which
ConocoPhillips conducted the 2018–2019 winter
exploration program. However, the GMT2 SEIS pertained
to a specific project in another part of the Petroleum Reserve.
The 2018 EA was not “of lesser scope” than the GMT2
SEIS, 40 C.F.R. § 1508.28(a) (2019); it was of a different
scope, covering a different area. Although the GMT2 SEIS

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24 NATIVE VILLAGE OF NUIQSUT V . BLM
analyzed many of the same issues concerning impacts to the
Teshekpuk Caribou Herd as were discussed in the 2018 EA,
it was not “an EIS for a programmatic plan.” W. Watersheds
Project v. Abbey, 719 F.3d 1035, 1049 (9th Cir. 2013).
The GMT2 SEIS is a “site-specific EIS[] that do[es] not
fall into either situation where tiering is permitted,” at least
pursuant to the 2019 regulation and as it relates to the 2018
EA. N. Plains Res. Council, Inc. v. Surface Transp. Bd.,
668 F.3d 1067, 1089 (9th Cir. 2011). Thus, if the BLM
continues to utilize the pre-2020 Rule NEPA regulations,
then it cannot tier environmental reports for new, separate
projects to the GMT2 SEIS. Without such tiering, Plaintiffs’
case is moot because it is not “likely that additional NEPA
analyses for future exploration in the [Petroleum Reserve]
will tier to and rely on the . . . GMT2 SEIS in the same
manner as the 2018 EA.” Nuiqsut, 432 F. Supp. 3d at 1023.
In other words, Plaintiffs’ claim that the 2018 EA’s analysis
was inadequate because it relied on the GMT2 SEIS is not
capable of repetition.
If, instead, the BLM attempts to tier future analyses to
the GMT2 SEIS by utilizing the new NEPA regulations, then
Plaintiffs’ suit is still moot because the new legal framework
affects the issue of tiering, as discussed above, and courts
would analyze future claims pursuant to the new regulation.
See 40 C.F.R. § 1501.11.
Alternatively, the BLM argues that it could incorporate
the GMT2 SEIS by reference in lieu of tiering. However,
the regulation in force in 2018 only allowed incorporation
by reference “into an environmental impact statement,”
without mentioning an environmental assessment like the
2018 EA. 40 C.F.R § 1502.21 (2019) (emphasis added).
Therefore, the plain text of the 2019 regulation forbids
incorporating the GMT2 SEIS into the 2018 EA. If the BLM

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NATIVE VILLAGE OF NUIQSUT V . BLM 25
continues to rely on 40 C.F.R. § 1502.21 (2019) when
issuing new EAs, then it cannot incorporate by reference the
GMT2 SEIS, and Plaintiffs’ claims are moot.
The CEQ appears to have recognized this issue, since the
2020 Rule allows incorporation by reference “into
environmental documents.” 40 C.F.R. § 1501.12 (emphasis
added); see also Update to NEPA Regulations, 85 Fed. Reg.
at 43,327 (“CEQ proposed to . . . change ‘environmental
impact statements’ to ‘environmental documents’ because
this provision is applicable generally, not just to EISs.”). If
the BLM applies the new regulations to incorporate by
reference the GMT2 SEIS, those future EAs would
presumably be analyzed pursuant to the other new
regulations in the 2020 Rule, which, as discussed above,
contains myriad new and different legal obligations which
would affect Plaintiffs’ claims and moot this case.
Therefore, the BLM, applying the old regulations,
cannot rely on the GMT2 SEIS for future EAs like the 2018
EA, or the BLM must utilize the new regulations to rely on
the GMT2 SEIS for future EAs. Under either scenario,
Plaintiffs’ particular claims no longer fit into the “capable of
repetition, yet evading review” exception to mootness.7
7 The BLM informs us that “on August 14, 2020, the BLM issued a
final EIS for the Willow Master Development Plan, which analyzes
ConocoPhillips’[s] proposed development activities located within the
same area as most of the 2018–2019 exploration activities.” See Notice
of Availability of the Willow Master Development Plan Final
Environmental Impact Statement, Alaska, 85 Fed. Reg. 49,677 (Aug. 14,
2020). The BLM stated it “expected to . . . issue[]” the ROD for this EIS
“by the end of October 2020 or shortly thereafter.” The BLM has not
provided an update as to whether it issued the ROD for the Willow
Master Development Plan, whether the Department of the Interior is

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26 NATIVE VILLAGE OF NUIQSUT V . BLM
4. Voluntary Cessation
ConocoPhillips states that while the company “applied
to the [BLM] for approval to conduct exploration activities
in the winter of 2019–20[,] . . . [a]t this time, ConocoPhillips
does not plan to conduct additional winter exploration in the
proposed Willow Master Development Plan area [8] for the
foreseeable future.” In holding that the case was not moot,
the district court relied in part on the fact that, at that time,
“[n]either [the BLM] nor ConocoPhillips dispute[d] the
company’s continued interested in conducting winter
exploration in the area.” Nuiqsut, 432 F. Supp. 3d at 1022.
Additionally, the district court took “judicial notice of the
fact that ConocoPhillips” applied for exploratory drilling for
2019–2020 and that the BLM had “again completed an EA
to review impacts of” that application. Id.
“It is well settled that a defendant’s voluntary cessation
of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice.” Friends
of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000) (internal quotation marks
omitted). “[T]he standard . . . for determining whether a
case has been mooted by the defendant’s voluntary conduct
is stringent: ‘A case might become moot if subsequent
events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.’” Id.
currently reviewing that EIS, or whether the Willow Master
Development Plan EIS is broader than the 2018 EA (like the 2012
IAP/EIS and 2020 IAP/EIS) or is for a different program (like the GMT2
SEIS). Therefore, we do not rely on issuance of the Willow Master
Development Plan EIS in deciding that this case is moot.
8 This is roughly the area where ConocoPhillips conducted the
2018–2019 winter exploratory drilling. See supra n.7.

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NATIVE VILLAGE OF NUIQSUT V . BLM 27
(quoting United States v. Concentrated Phosphate Export
Ass’n., 393 U.S. 199, 203 (1968)).
Standing alone, ConocoPhillips’s declaration does not
satisfy the “heavy burden” to show that voluntary cessation
moots the case. Id. (internal quotation marks omitted). As
Plaintiffs note, ConocoPhillips’s “intention could change at
any time.” Thus, the voluntary cessation exception to
mootness would apply if the only new circumstance that
arose since the district court decided this case were
ConocoPhillips’s declaration. Cf. Forest Guardians v. U.S.
Forest Serv., 329 F.3d 1089, 1095 (9th Cir. 2003).
However, in evaluating the “capable of repetition, yet
evading review” exception to the mootness doctrine, we
consider ConocoPhillips’s declaration to be a factor that
shows that “there is [no] reasonable expectation that
[Plaintiffs] will once again be subjected to the challenged
activity.” Lee, 766 F.2d at 1390. Again, ConocoPhillips’s
declaration alone is insufficient to show that the case is
moot, or to show that the mootness exception should not
apply, but when combined with the other circumstances
noted above, the declaration must be considered.
IV. CONCLUSION
This is a unique case where mootness is not based on a
single factor, but instead on a multitude of new
circumstances, which, together, show that the “capable of
repetition, yet evading review” exception to mootness does
not apply. Based upon the issuance of the 2020 Rule, the
publication of the 2020 IAP/EIS, the fact that the BLM
cannot tier to or incorporate by reference the GMT2 SEIS
for future EAs similar to the 2018 EA, and ConocoPhillips’s
declaration that it will not pursue exploratory drilling in the
near future, we hold that Plaintiffs cannot show that the

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28 NATIVE VILLAGE OF NUIQSUT V . BLM
exception to mootness applies to their claims. With the case
being moot, our court and the district court are without
jurisdiction to decide this case. Finally, because we do not
have jurisdiction, we cannot consider the merits of Plaintiffs’
claims.
“When a case becomes moot on appeal, the ‘established
practice’ is to reverse or vacate the decision below with a
direction to dismiss.” NASD Disp. Resol., Inc. v. Jud.
Council of State of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007)
(quoting Arizonans for Official English v. Arizona, 520 U.S.
43, 71 (1997)). Because actions by Defendants, not
Plaintiffs, have triggered our holding that the case is moot,
the “established practice” of vacatur is appropriate in this
case. See In re Burrell, 415 F.3d 994, 999 (9th Cir. 2005).
Additionally, the district court’s decision implicitly endorses
that future EAs can rely on the GMT2 SEIS. See Nuiqsut,
432 F. Supp. 3d at 1023, 1029–40. The “preclusive effect of
[the district court’s] judgment[], if unreviewed, may unfairly
prejudice” Plaintiffs in future cases and “must be vacated.”
Burrell, 415 F.3d at 1000. Therefore, we vacate the district
court’s decision and remand with instructions to dismiss the
case as moot.
VACATED AND REMANDED.

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